S.
SABBATH. The same as Sunday. (q.v.)
SABINIANS. A sect of lawyers, whose first chief was Atteius Capito, and the
second, Caelius Sabiaus, from whom they derived their name. Clef des Lois
Rom. h.t.
SACRAMENTUM. An oath; as, qui dicunt supra sacramentum suum.
SACQUIER, maritime law. The same of an ancient officer, whose business "was
to load and unload vessels laden with salt, corn, or fish, to prevent the
ship's crew defrauding the merchant by false tale, or cheating him of his
merchandise otherwise." Laws of Oleron, art. 11, published in an English
translation in an Appendix to 1 Pet. Adm. R. XXV. See Arrameur; Stevedore.
SACRILEGE. The act of stealing from the temples or churches dedicated to the
worship of God, articles consecrated to divine uses. Pen. Code of China, B.
1, s. 2, Sec. 6; Ayl. Par. 476.
SAEVETIA. Cruelty. (q.v.) It is required in order to constitute saevetia
that there should exist such a degree of cruelty as to endanger the party's
suffering bodily hurt. 1 Hagg. Cons. R. 85; 2 Mass. 150; 3 Mass. 821; 4
Mass. 587.
SAFE-CONDUCT, comm. law, war. A passport or permission from a neutral state
to persons who are thus authorized to go and return in safety, and,
sometimes, to carry away certain things, in safety. According to common
usage, the term passport is employed on ordinary occasions, for the
permission given to persons when there is no reason why they should not go
where they please: and safe-conduct is the name given to the instrument
which authorizes certain persons, as enemies, to go into places where they
could not go without danger, unless thus authorized by the government.
2. A safe-conduct is also the name of an instrument given to the
captain or master of a ship to proceed on a particular voyage: it usually
contains his name and residence, the name, description and destination of
the ship, with such other matters as the practice of the place requires.
This document is indispensably necessary for the safety of every neutral
ship.
3. The act of congress of April 30th, 1790, s. 27, punishes the
violation of any safe-conduct or passport granted under the authority of the
United States, on conviction, with imprisonment, not exceeding three years,
and a fine at the discretion of the court. Vide Conduct; Passport; and 18
Vin. Ab. 272.
SAFE PLEDGE, salvus-plegius. A surety given that a man shall appear upon a
certain day. Bract. lib. 4, c. 1.
SAID. Before mentioned.
2. In contracts and pleadings it is usual and proper when it is desired
to speak of a person or thing before mentioned, to designate them by the
term said or aforesaid, or by some similar term, otherwise the latter
description will be ill for want of certainty. 2 Lev. 207: Com. Dig.
Pleader, C IS; Gould on Pl: c. 3, Sec. 63.
SAILING INSTRUCTIONS, mar. law. Written or printed directions, delivered by
the commanding officer of a convoy to the several masters of the ships under
his care, by which they are enabled to understand and answer his signals, to
know the place of rendezvous appointed for the fleet, in case of dispersion
by storm, by an enemy, or by any other accident.
2. Without sailing instructions no vessel can have the full protection
and benefit of convoy. Marsh. Ins. 368.
SAILORS. Seamen, mariners. Vide Mariners; Seamen; Shipping Articles.
SAISIE-EXECUTION, French law. This term is used in Louisiana. It is a writ
of execution by which the creditor places under the custody of the law, the
movables, which are liable to seizure, of his debtor, in order that out of
them he may obtain payment of the debt due by him Code of Practice, art.
641, Dall. Diet. h.t.. It is a writ very similar to the fieri facias.
SAISIE-FORAINE. A term used in Louisiana and in the French law; this is a
permission given by the proper judicial officer, to authorize a creditor to
seize the property of his debtor in the district which he inhabits. Dall.
Dict. h.t. It has the effect of an attachment of property, which is applied
to the payment of the debt due.
SAISIE-GAGERIE, French law. A conservatory act of execution, by which the
owner, or principal lessor of a house or farm, causes the furniture of the
house or farm leased, and on which he has a lien, to be seized, in order to
obtain the rent due to him. It is similar to the distress of the common law.
Dall. Dict. h.t.
SAISIE-IMMOBILIERE. A writ by which the creditor puts in the custody of the
law the immovables of his debtor, that out of the proceeds of their sale, he
may be paid his demand. The term is French, and is used in Louisiana.
SALARY. A reward or recompense for services performed.
2. It is usually applied to the reward paid to a public officer for the
performance of his official duties.
3. The salary of the president of the United States is twenty-five
thousand dollars per annum; Act of l8th Feb. 1793; and the constitution,
art. 2, s. 1, provides that the compensation of the president shall not be
increased or diminished, during the time for which he shall have been
elected.
4. Salary is also applied to the reward paid for the performance of
other services; but if it be not fixed for each year, it is called
honorarium. Poth. Pand. h.t. According to M. Duvergier, the distinction
between honorarium and salary is this. By the former is understood the
reward given to the most elevated professions for services performed; and by
the latter the price of hiring of domestic servants and workmen. 19 Toull.
n. 268, p. 292, note.
5. There is this difference between salary and price; the former is the
reward paid for services, or for the hire of things; the latter is the
consideration paid for a thing sold. Lec. Elem. Sec. 907, 908.
SALE, contracts. An agreement by which one of the contracting parties,
called the seller, gives a thing and passes the title to it, in exchange for
a certain price in current money, to the other party, who is called the
buyer or purchaser, who, on his part, agrees to pay such price. Pard. Dr.
Com. n. 6; Noy's Max. ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth.
Vente, n. 1; 1 Duverg. Dr. Civ. Fr. n. 7.
2. This contract differs from a barter or exchange in this, that in the
latter the price or consideration, instead of being paid in money, is paid
in goods or merchandise, susceptible of a valuation. It differs from accord
and satisfaction, because in that contract, the thing is given for the
purpose of quieting a claim, and not for a price. An onerous gift, when the
burden it imposes is the payment of a sum of money, is, when accepted, in
the nature of a sale. When partition is made between two or more joint
owners of a chattel, it would seem, the contract is in the nature of a
barter. See 11 Pick. 311.
3. To constitute a valid sale there must be, 1. Proper parties. 2. A
thing which is the object of the contract. 3. A price agreed upon; and, 4.
The consent of the contracting parties, and the performance of certain acts
required to complete the contract. These will be separately considered.
4.-Sec. 1. As a general rule all persons sui juris may be either buyers
or sellers. But to this rule there are several exceptions. 1. There is a
class of persons who are incapable of purchasing except sub modo, as
infants, and married women; and, 2. Another class, who, in consequence of
their peculiar relation with regard to the owner of the thing sold, are
totally incapable of becoming purchasers, while that relation exists; these
are trustees, guardians, assignees of insolvents, and generally all persons
who, by their connexion with the owner, or by being employed concerning his
affairs, have acquired, a knowledge of his property, as attorneys,
conveyancers, and the like. See Purchaser.
5.-Sec. 2. There must be a thing which is the object of the sale, for
if the thing sold at the time of the sale had ceased to exist it is clear
there can be no sale; if, for example, Paul sell his horse to Peter, and, at
the time of the sale the horse be dead, though the fact was unknown to both
parties: or, if you and I being in Philadelphia, I sell you my house in
Cincinnati, and, at the time of the sale it be burned down, it is manifest
there was no sale, as there was not a thing to be sold. It is evident, too,
that no sale can be made of things not in commerce, as the air, the water of
the sea, and the like. When there has been a mistake made as to the article
sold, there is no sale; as, for example, where a broker, who is the agent of
both parties, sells an article and delivers to the seller a sold note
describing the article sold as "St. Petersburg clean hemp," and bought note
to, the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786, 788; 5
B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N. S. 747 9 M. &, W. 805.
Holt. N. P. Cas. 173; 1 M. & P. 778.
6. There must be an agreement as to the specific goods which form the
basis of the contract of sale; in other words, to make a perfect sale, the
parties must have agreed the one to part with the title to a specific
article, and the other to acquire such title; an agreement to sell one
hundred bushels of wheat, to be measured out of a heap, does not change the
property, until the wheat has been measured. 3 John. 179; Blackb. on Sales,
122, 5 Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick. 280; 15
John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.
7.-Sec. 3. To constitute a sale there must be a price agreed upon; but
upon the maxim id certum est quod reddi certum potest, a sale may be valid
although it is agreed that the rice for the thing sold shall be determined
by a third person. 4 Pick. 179. The price must have the three following
qualities, to wit: 1. It must be an actual or serious price. 2. It must be
certain or capable of being rendered certain. 3. It must consist of a sum of
money.
8.-1. The price must be an actual or serious price, with an intention
on the part of the seller, to require its payment; if, therefore, one should
sell a thing to another, and, by the same agreement, he should release the
buyer from the payment, this would not be a sale but a gift, because in that
case the buyer never agreed to pay any price, the same agreement by which
the title to the thing is passed to him discharging him from all obligations
to pay for it. As to the quantum of the price that is altogether immaterial,
unless there has been fraud in the transaction. 2. The price must be certain
or determined, but it is sufficiently certain, if, as before observed, it be
left to the determination of a third person. 4 Pick. 179; Poth. Vente, n.
24. And an agreement to pay for goods what they are worth, is sufficiently
certain. Coxe, 261; Poth. Vente, n. 26. 3. The price must consist in a sum
of money which the buyer agrees to pay to the seller, for if paid for in any
other way, the contract would be an exchange or barter, and not a sale, as
before observed.
9.-Sec. 4. The consent of the contracting parties, which is of the
essence of a sale, consists in the agreement of the will of the seller to
sell a certain thing to the buyer, for a certain price, and in the will of
the buyer, to purchase the same thing for the same, price. Care must be
taken to distinguish between an agreement to enter into a future contract,
and a present actual agreement to make a sale. This consent may be shown, 1.
By an express agreement. 2. By all implied agreement.
10.-1. The consent is certain when the parties expressly declare it.
This, in some cases, it is requisite should be in writing. By the 17th
section of the English statute, 29 Car. II. c. 3, commonly called the
Statute of Frauds, it is enacted, "that no contract for the sale of any
goods, wares, or merchandise, for the price of œ10 or upwards, shall be
allowed to be good, except the buyer shall accept part of the goods so sold,
and actually receive the same, or give something in earnest to bind the
bargain, or in part payment, or some note or memorandum in writing of the
said bargain be made and signed by the parties to be charged by such
contract or their agents thereunto lawfully authorized." This statute has
been reenacted in most of the states of the Union, with amendments and
alterations,
11. It not unfrequently happens that the consent of the parties to a
contract of sale is given in the course of a correspondence. To make such
contract valid, both parties must concur in it at the same time. See Letter,
com. law, crim. law, Sec. 2; 4 Wheat. 225; 6 Wend. 103; 1 Pick. 278 10 Pick.
326.
12. An express consent to a sale may be given verbally, when it is not
required by the statute of frauds to be in writing.
13.-2. When a party, by his acts, approves of what has been done, as if
he knowingly uses goods which have been left at his house by another who
intended to sell them, he will, by that act, confirm the sale.
14. The consent must relate, 1. To the thing which is the object of the
contract; 2. To the price; and, 3. To the sale itself. 1st. Both parties
must agree upon the same object of the sale; if therefore one give consent
to buy one thing, and the other to sell another, there is no sale; nor is
there a sale if one sells me a bag full of oats, which I understand is full
of wheat; because there is no consent as to the thing which is the object of
the sale. But the sale would be valid, although I might be mistaken as to
the quality of the tiling sold. 20 John. 196 3 Rawle, 23, 168. 2d. Both
parties must agree as to the same price, for if the seller intends to sell
for a greater sum than the buyer intends to give, there is no mutual
consent; but if the case were reversed, and the seller intended to sell for
a less price than the buyer intended to give, the sale would be good for the
lesser sum. Poth. Vente, n. 36. 3d. The consent must be on the sale itself,
that is, one intends to sell, and the other to buy. If, therefore, Peter
intended to lease his house for three hundred dollars a year for ten years,
and Paul intended to buy it for three thousand dollars, there would not be a
contract of sale nor a lease. Poth. Vente, n. 37.
15. In order to pass the property by a sale, there must be an express or
implied agreement that the title shall pass. An agreement for the sale of
goods is prima facie a bargain and sale of those goods; but this arises
merely from the presumed intention of the parties, and if it appear that the
parties have agreed, not that there shall be a mutual credit by which the
property is to pass from the seller to the buyer, and the buyer is bound to
pay the price to the seller, but that the exchange of the money for the
goods shall be made on the. spot, no property is transferred, for it is not
the intention of the parties to transfer any. 4 Wash. C. C. R. 79. But, on
the contrary, when the making of part payment, or naming a day for payment,
clearly shows an intention in the parties that they should have some time to
complete the sale by payment and delivery, and that they should in the
meantime be trustees for each other, the one of the property in the chattel,
and the other in the price. As a general rule, when a bargain is made for
the purchase of goods, and nothing is said about payment and. delivery, the
property passes immediately, so as to cast upon the purchaser all future
risk, if nothing remains to be done to the goods, although he cannot take
them away without paying the price. 5 B. & C. 862.
16. Sales are absolute or conditional. An absolute sale is one made and
completed without any condition whatever. A conditional sale is one which
depends for its validity upon the fulfillment of some condition. See 4 Wash.
C. C. R. 588; 4 Mass. 405; 17 Mass. 606; 10 Pick. 522; 13 John. 219; 18
John. 141; 8 Vern. 154; 2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2
A.K. Marsh. 430.
17. Sales are also voluntary or forced, public or private.
18.-1. A voluntary sale is one made without constraint freely by the
owner of the thing sold; to such the usual rules relating to sales apply. 2.
A forced sale is one made without the consent of the owner of the property
by some officer appointed by law, as by a marshal or a sheriff in obedience
to the mandate of a competent tribunal. This sale has the effect to transfer
all the rights the owner had in the property, but it does not, like a
voluntary sale of personal property, guaranty a title to the thing sold it
merely transfers the rights of the person as whose property it has been
seized. This kind of a sale is sometimes called a judicial sale. 3. A public
sale is one made at auction to the highest bidder. Auction sales sometimes
are voluntary, as when the owner chooses to sell his goods in this way, and
then as between the seller and the buyer the usual rules relating to sales
apply; or they are involuntary or forced when the same rules do not apply.
4. Private sales are those made voluntarily and not at auction.
19. The above rules apply to sales of personal property. The sale of real
estate is governed by other rules. When a contract has been entered into for
the sale of lands, the legal estate in such lands still remains vested in
the vendor, and it does not become vested in the vendee until he shall have
received a lawful deed of conveyance from the vendor to him; and the only
remedy of the purchaser at law, is to bring an action on the contract, and
recover pecuniary damages for a breach of the contract. In equity, however,
after a contract for the sale, the lands are considered as belonging to the
purchaser, and the court will enforce his rights by a decree for a specific
performance; and the seller will be entitled to the purchase money. Will. on
Real Prop. 127. See Specific performance.
20. In general, the seller of real estate does not guaranty the title;
and if it be desired that he should, this must be done by inserting a
warranty to that effect. See, generally, Brown on Sales; Blackb. on Sales;
Long on Sales; Story on Sales, Sugd. on Vendors; Pothier, Vente; Duvergier,
Vente; Civil Code of Louisiana, tit. 7; Bouv. Inst. Index, h.t.; and
Contracts; Delivery; Purchaser; Seller; Stoppage in transitu.
SALE NOTE. A memorandum given by a broker to a seller or buyer of goods,
stating the fact that certain goods have been sold by him on account of a
person called the seller to another person called the buyer. Sale notes are
also called bought notes, (q.v.) and sold notes. (q.v.)
SALE AND RETURN. When goods are sent from a manufacturer or wholesale dealer
to a retail trader, in the hope that he may purchase them, with the
understanding that what he may choose to take he shall have as on a contract
of sale, and what he does not take he will retain as a consignee for the
owner, the goods are said to have been sent on sale and return.
2. The goods taken by the receiver as on a sale, will be considered as
sold, and the title to them is vested in the receiver of them; the goods he
does not buy are considered as a deposit in the hands of the receiver of
them, and the title is in the person who sent them. 1 Bell's Com., 268, 5th
ed.
SALIQUE LAW. The name of a code of laws so called from the Salians, a people
of Germany, who settled in Gaul under their king Phararaond.
2. The most remarkable law of this code is that which regards
succession. De terra vero salica nulla portio haereditatis transit in
mulierem, sed hoc viriles sextus acquirit, hoc est filii in ipsa haereditate
succedunt; no part of the salique land passes to females, but the males
alone are capable of taking, that is, the sons succeed to the inheritance.
This rule has ever excluded females from the throne of France.
SALVAGE, maritime law. This term originally meant the thing or goods saved
from shipwreck or other loss; and in that sense it is generally to be
understood in our old books. But it is at present more frequently understood
to mean the compensation made to those by whose means the ship or goods have
been saved from the effects of shipwreck, fire, pirates, enemies, or any
other loss or misfortune. 1 Cranch, 1.
2. This compensation, which is now usually made in money, was, before
the use of money became general, made by a delivery of part of the effects
saved. Marsh. Ins. B. 1, c. 12, s. 8; Pet. Adm. Dec. 425; 2 Taunt. 302; 3 B.
& P. 612; 4 M. & S. 159; 1 Cranch, 1; 2 Cranch, 240; Cranch, 221; 3 Dall.
188; 4 Wheat. 98 9 Cranch, 244; 3 Wheat. 91; 1 Day, 193 1 Johns. R. 165; 4
Cranch, 347; Com. Dig. Salvage; 3 Kent, Com. 196. Vide Salvors.
SALVAGE CHARGES. The expenses incurred to remunerate services rendered to a
ship and cargo, which have prevented its being a total loss. Stev. on Av. c.
2, s. 1.
SALVAGE LOSS. By salvage loss is understood the difference between the
amount of salvage, after deducting the charges, and the original value of
the property. Stev. on Av. c. 2, s. 1.
SALVORS, mar. law. When a ship and cargo, or any part thereof, are saved at
sea by the exertions of any person from impending perils, or are recovered
after an actual abandonment or loss, such persons are denominated salvors;
they are entitled to a compensation for their services, which is called
salvage. (q.v.)
2. As soon as they take possession of property for the purpose of
preserving it, as if they find a ship derelict at sea, or if they recapture
it, or if they go on board a ship in distress, and take possession with the
assent of the master or other person in possession, they are deemed bona
fide possessors, and their possession cannot be lawfully displaced. 1
Dodson's Rep. 414. They have a lien on the property for their salvage, which
the, laws of all maritime countries will respect and enforce. Salvors are
responsible not only for good faith, but for reasonable diligence in their
custody of the salvage property. Story, Bail. Sec. 623.
SAMPLE, contracts. A small quantity of any commodity or merchandise,
exhibited as a specimen of a larger quantity called the bulk. (q.v.)
2. When a sale is made by sample, and it afterwards turns out that the
bulk does not correspond with it, the purchaser is not, in general, bound to
take the property on a compensation being made to him for the difference. 1
Campb. R. 113; vide 2 East, 314; 4, Campb. R. 22; 12 Wend. 566 9 Wend. 20; 6
Cowen, 354; 12 Wend. 413. See 5 John. R. 395.
SANCTION. That part of a law which inflicts a penalty for its violation, or
bestows a reward for its observance. Sanctions are of two kinds, those which
redress civil injuries, called civil sanctions; and those which punish
crimes, called penal sanctions. 1 Hoffm. Leg. Outl. 279; Just. Ins. lib. 2,
t. 1, Sec. 10; Ruthf. Inst. b. 2, c. 6, s. 6; Toull. tit. prel. 86; Ferguss.
Inst. of Mor. Phil. p. 4, c. 3, s. 13, and p. 6, c. 1, et seq; 1 Bl. Com.
56.
SANCTUARY. A place of refuge, where the process of the law cannot be
executed.
2. Sanctuaries may be divided into religious and civil. The former were
very common in Europe; religious houses affording protection from arrest to
all persons, whether accused of crime, or pursued for debt. This kind was
never known in the United States.
3. Civil sanctuary, or that protection which is afforded to a man by
his own house, was always respected in this country. The house protects the
owner from the service of all civil process in the first instance but not if
he is once lawfully arrested and takes refuge in his own house. Vide Door;
House.
4. No place affords protection from arrest in criminal cases; a man
may, therefore, be arrested in his own house in such cases, and the doors
may be broken for the purpose of making the arrest. Vide Arrest in criminal
cases.
SANE MEMORY. By this is meant that understanding which enables a man to make
contracts and his will, and to perform such other acts as are authorized by
law; Vide Lunacy; Memory; Non compos mentis.
SANG or SANC. Blood. These words are nearly obsolete.
SANITY, med. jur. The state of a person who has a sound understanding; the
reverse of insanity.
2. The sanity of an individual is always presumed. 5 John. R. 144; 1
Pet. R. 163; 1 Hen. & M. 476; 4. Cowen, R. 207; 4 W. C. C. R. 262. See 9
Conn. 102; 9 Mass. 225; 3 Mass. 336 1 Mass. 71; 8 Mass. 371; 8 Greenl. 42;
15 John. 503; 4 Pick. 32.
SANS CEO QUE. The same as Absque hoc. (q.v.)
SANS NOMBRE. This is a French phrase, which signifies without number.
2. In England it is used in relation to the right of putting animals on
a common. The term common sans nombre does not mean that the beasts are to
be innumerable, but only indefinite, not certain; Willes, 227; but they are
limited to the commoner's own commonable cattle, levant et couchant, upon
his lands, or as many cattle as the land of the commoner can keep and
maintain in winter. 2 Brownl. 101; Vent. 54; 5 T. R. 48; 1 Saund. 28, n. 4.
SANS RECOURS. Without recourse.
2. These words are sometimes put on a bill before the payee endorses
it; they have the effect of transferring the bill without responsibility to
the endorser. Chit. on Bills, 179; 7 Taunt. 160; 1 Cowen, 538; 3 Cranch,
193; 7 Cranch, 159; 12 Mass. 172; 14 S. & R. 325.
SATISDACTION, civil law. This word is derived from the same root as
satisfaction; for, in the same manner that to fulfill the demand which is
made upon us, is called satisfaction, so satisdaction takes place when he
who demands something has agreed to receive sureties instead of the thing
itself. Dig. 2, 8, 1
SATISFACTION, practice. An entry made on the record, by which a party in
whose favor a judgment was rendered, declares that he has been satisfied and
paid.
2. In Alabama, Delaware, Illinois, Indiana, Massachusetts, New
Hampshire, Pennsylvania, Rhode Island, South Carolina, and, Vermont,
provision is made by statute, requiring the mortgagee to discharge a
mortgage upon the record, by entering satisfaction in the margin. The
refusal or neglect to enter satisfaction after payment and demand, renders
the mortgagee liable to an action, after the time given him by the
respective statutes for doing the same has elapsed, and subjects him to the
payment of damages, and, in some cases, treble costs. In Indiana and New
York, the register or recorder of deeds may himself discharge the mortgage
upon the record on the exhibition of a certificate of payment and
satisfaction signed by the mortgagee or his representatives, and attached to
the mortgage, which shall be recorded. Ind. St. 1836, 64; 1 N. Y. Rev. St.
761.
SATISFACTION, construction by courts of equity. Satisfaction is defined to
be the donation of a thing, with the intention, express or implied, that
such donation is to be an extinguishment of some existing right or claim in
the donee.
2. Where a person indebted bequeaths to his creditor a legacy, equal
to, or exceeding the amount of the debt, which is not noticed in the will,
courts of equity, in the absence of any intimation of a contrary intention,
have adopted the rule that the testator shall be presumed to have meant the
legacy as a satisfaction. of the debt.
3. When a testator, being indebted, bequeaths to his creditor a legacy,
simpliciter, and of the same nature as the debt, and not coming within the
exceptions stated in the next paragraph, it has been held a satisfaction of
the debt, when the legacy is equal to, or exceeds the amount of the debt.
Pre. Ch. 240; 3 P. Wms. 353.
4. The following are exceptions to the rule: 1. Where the legacy is of,
less amount than the debt, it shall not be deemed a part payment or
satisfaction. 1 Ves. pen. 263.
5.-2. Where, though the debt and legacy are of equal amount, there is a
difference in the times of payment, so that the legacy may not be equally
beneficial to the legatee as the debt. Prec. Ch. 236; 2 Atk. 300; 2 Ves.
sen. 63 5; 3 Atk. 96; 1 Bro. C. C. 129; 1 Bro. C. C. 195; 1 McClel. & Y.
Rep. Exch. 41; 1 Swans. R. 219.
6.-3. When the legacy and the debt are of a different nature, either
with reference, to the subjects themselves, or with respect to the interests
given. 2 P. Wms. 614; 1 Ves. jr. 298; 2 Ves. jr. 463.
7.-4. When the provision by the will is expressed to be given for a
particular purpose, such purpose will prevent the testamentary gift being
construed a satisfaction of the debt, because it is given diverse intuitu. 2
Ves. sen. 635.
8.-5. When the debt of the testator is contracted subsequently to the,
making of the will; for, in that case, the legacy will not be deemed a
satisfaction. 2 Salk. 508.
9.-6. When the legacy is uncertain or contingent. 2 Atk. 300; 2 P. Wms.
343.
10.-7. Where the debt itself is contingent, as where it arises from a
running account between the testator and legatee; 1 P. Wms. 296; or it is a
negotiable bill of exchange. 3 Ves. jr. 561.
11.-8. Where there is an express direction in the will for the payment
of debts end legacies, the court will infer from the circumstance, that the
testator intended that both the debt owing from him to the legatee and the
legacy, should, be paid. 1 P. Wms. 408; 2 Roper, Leg. 54.
See, generally, Tr. of Eq. 333; Yelv. 11, n.; 1 Swans. R. 221; 18 Eng.
Com. Law Rep. 201; 4 Ves. jr. 301; 7 Ves. jr. 507; 1 Suppl. to Ves. jr. 204,
308, 311, 342, 348, 329; 8 Com. Dig. Appen. tit. Satisfaction, p. 917; Rob.
on Frauds, 46, n. 15; 2 Suppl. to Ves. jr. 22, 46, 205; 1 Vern. 346; Roper,
Leg. c. 17; 1 Roper on Hush. and Wife, 501 to 511; 2 Id. 53 to 63; Math. on
Pres. c. 6, p. 107; 1 Desaus. R. 814; 2 Munf. Rep. 413; Stallm. on El. and
Sat.
SATISFACTION PIECE, Eng. practice. An instrument of writing in which it is
declared that, satisfaction is acknowledged between the plaintiff and
defendant. It is signed by the attorney, and on its production and the
warrant of attorney to the clerk of the judgments, satisfactio is entered on
payment, of certain fees. Lee's Dict. of Pr. tit. Satisfaction.
SATISFACTORY EVIDENCE. That which is sufficient to induce a belief that the
thing is true; in other words, it is credible evidence. 3 Bouv. Inst. n.
3049.
SCANDAL. A scandalous verbal report or rumor respecting some person.
2. The remedy is an action on the case.
3. In chancery practice, when a bill or other pleading contains
scandal, it will be referred to a master to be expunged, and till this has
been done, the opposite party need not answer. 3 Bl. Com. 342. Nothing is
considered scandalous which is positively relevant to the cause, however
harsh and gross the charge may be. The degree of relevancy is not deemed
material. Coop. Eq. Pl. 19; 2 Ves. 24; 6 Ves. 514, 11 Ves. 626; 15 Ves. 477;
Story Eq. Plo. Sec. 269 Vide Impertinent.
SCANDALUM MAGNATUM. Great scandal or slander. In England it. is the slander
of the great men, the nobility of the realm.
SCHEDULE, practice. When an indictment is returned, from au inferior court
in obedience to a writ of certiorari, the, statement of the previous
proceedings sent with it, is termed the schedule. 1 Saund. 309, a, n. 2.
2. Schedules are also frequently annexed to answers in a court of
equity, and to depositions and other documents, in order to show more in
detail the matter they contain, than could otherwise be conveniently shown.
3. The term is frequently used instead of inventory.
SCHOOLMASTER. One employed in teaching a school.
2. A schoolmaster stands in loco parentis in relation to the pupils
committed to his charge, while they are under his care, so far as to enforce
obedience to his, commands, lawfully given in his capacity of school-master,
and he may therefore enforce them by moderate correction. Com. Dig. Pleader,
3 M 19; Hawk. c. 60, sect. 23. Vide Correction.
3. The schoolmaster is justly entitled to be paid for his important and
arduous services by those who employ him. See 1 Bing. R. 357 8 Moore's Rep.
368. His duties are to teach his pupils what he has undertaken, and to have
a special care over their morals. See 1 Stark. R. 421.
SCIENDUM, Eng. law. The name given to a clause inserted in the record by
which it is made "known that the justice here in court, in this same term,
delivered a writ thereupon to the deputy sheriff of the county aforesaid, to
be executed in due form of law." Lee's Dict. art. Record.
SCIENTER, knowingly.
2. A man may do many acts which are justifiable or not, as he is
ignorant or not ignorant of certain facts. He may pass a counterfeit coin,
when he is ignorant of its being counterfeit, and is guilty of no offence;
but if he knew the coin to be counterfeit, which is called the scienter, he
is guilty of passing counterfeit money. A man who keeps an animal which
injures some person, or his property, is answerable for damages, or in some
cases he may be indicted if he had a knowledge of such animal's propensity
to do injury. 3 Blackst. Comm. 154; 2 Stark. Ev. 178; 4 Campb. 198; 2 Str.
1264; 2 Esp. 482; Bull. N. P. 77; Burr. 2092; 2 Lev. 172; Lord Raym. 110; 2
B. & A. 620; 2 C. M. & R. 496; 5 C. & P. 1; S. C. 24 E. C. L. R. 187; 1
Leigh, N. P. 552, 553; 7 C. & P. 755.
4. In this respect the civil law agrees with our own. Domat, Lois Civ.
liv. 2, t. 8, s. 2. As to what evidence maybe given to prove guilty
knowledge, see Archb. Cr. Pl. 109. Vide Animal; Dog.
SCILICET. A Latin adverb, signifying that is to say; to wit; namely.
2. It is a clause to usher in the sentence of another, to particularize
that which was too general before, distribute what was too gross, or to
explain what was doubtful and obscure. It neither increases nor diminish the
premises or habendum, for it gives nothing of itself; it may make a
restriction when the preceding words may be restrained. Hob. 171 P. Wms. 18;
Co. Litt. 180 b, note 1.
3. When the scilicet is repugnant to the precedent matter, it is void;
for example, when a declaration in trover states that the plaintiff on the
third day of May was possessed of certain goods which on the fourth day of
May came to the defendant's hands, who afterwards, to wit, on the first day
of May converted them, the scilicet was rejected as surplusage. Cro. Jac.
428; and vide 6 Binn. 15; 3 Saund. 291, note 1, and the cases there cited.
This word is sometimes abbreviated, ss. or sst.
SCINTILLA JURIS, estates; A spark of right. A legal fiction, resorted to for
the purpose of enabling feoffees to uses to support contingent uses when
they come into existence, thereby to enable the statutes of uses, 27 Henry
VIII., to execute them. 4 Kent's Com. 238, et seq., and the authorities
there cited, for the learning upon this subject.
SCIRE FACIAS, remedies, practice. The name of a judicial writ, founded upon
some record, and requiring the defendant to show cause why the plaintiff
should not have the "advantage of such record; or, when it is issued to
repeal letters-patent, why the record should not be annulled and vacated. 3
Sell. Pr. 187; Grah. Pr. 649; 2 Tidd's Pr. 982; 2 Arch. Pr. 76; Bac. Abr.
h.t.
2. It is, however, considered as an action, and in the nature of a new
original. Skin. 682; Com. 455.
3. The scire facias against a bail, against pledges in replevin, to
repeal letters-patent, or the like, is an original proceeding; but when
brought to revive a judgment after a year and a day, or upon the death or
marriage of the parties, when in the latter case one of them is a woman; or
when brought on a judgment quando, &c., against an executor, it is but a
continuation of the original action. Vide 1 T. R. 388. Vide generally, 11
Vin. Ab. 1; 19 Vin. Ab. 280 Bac. Ab. Execution, H; Bac. Ab. h.t. 2 Saund. 72
e, note, 3; Doct. Pl. 436 Bouv. Inst. Index, h.t.
SCIRE FACIAS AD AUDIENDUM ERRORES. The name of a writ which is sued out
after the plaintiff in error has assigned his errors. F. N. B. 20; Bac. Ab.
Error F.
SCIRE FACIAS AD DISPROBANDUM DEBTTUM. The name of a writ in use in
Pennsylvania, which lies by a defendant in foreign attachment against the
plaintiff, in order to enable him, within a year and a day next ensuing the
time of payment to the plaintiff in the attachment, to disprove or avoid the
debt recovered against him. Act relating to the commencement of actions, s.
61, passed June 13th, 1836.
SCIRE FECI, practice. The return of the sheriff, or other proper officer, to
the writ of scire facias, when it has been served; scire feci, "I have made
known."
SCIRE FIERI INQUIRY, Eng. law. The name of a writ, the history of the origin
of which is as follows: when on an execution de bonis testatoris against an
executor the sheriff returned nulla bona and also a devastavit, a fieri
facias, de bonis propriis, might formerly have been issued against the
executor, without a previous inquisition finding a devastavit and a scire
facias. But the most usual practice upon the sheriff's return of nulla bona
a to a fieri facias de bonis testatoris, was to sue out a special writ of
fieri facias de bonis testatoris, with a clause in it, "et si tibi constare,
poterit," that the executor had wasted the goods, then to levy de bonis
propriis. This was the practice in the king's bench till the time of Charles
I.
2. In the common pleas a practice had prevailed in early times upon a
suggestion in the special writ of fieri facias of a devastavit by the
executor, to direct the sheriff to inquire by a jury, whether the executor
had wasted the goods, and if the jury found he had, then a scire facias was
issued out against him, and unless he made a good defence thereto, an
execution de bonis propriis was awarded against him.
3. The practice of the two courts being different, several cases were
brought into the king's bench on error, and at last it became the practice
of both courts, for the sake of expedition, to incorporate the fieri facias
inquiry, and scire facias, into one writ, thence called a scire fieri
inquiry, a name compounded of the first words of the two writs of scire
facias and fieri facias, and that of inquiry, of which it consists.
4. This writ recites the fieri facias de bonis testatoris sued out on
the judgment against the executor, the return of nulla bona by the sheriff,
and then suggesting that the executor bad sold and converted the goods of
the testator to the value of the debt and damages recovered, commands the
sheriff to levy the said debt and damages of the goods of the testator in
the hands of the executor, if they could be but if it should appear to him
by the inquisition of a jury that the executor had wasted the goods of the
testator, then the sheriff is to warn the executor to appear, &c. If the
judgment had been either by or against the testator or intestate, or both,
the writ of fieri facias recites that fact, and also that the court had
adjudged, upon a scire facias to revive the judgment, that the executor or
administrator should have execution for the debt, &c. Clift's Entr. 659;
Lilly's Entr. 664; 3 Rich. Pr. K. B. 523.
5. Although this practice is sometimes adopted, yet the most usual
proceeding is by action of debt on the judgment, suggesting a devastavit,
because in the proceeding by scire fieri inquiry the plaintiff is not
entitled to costs, unless the executor appears and pleads to the scire
facias. 1 Saund. 219, n. 8. See 2 Archb. Pr. 934.
SCITE. The setting or standing of may place. The seat or situation of a
capital messuage, or the ground on which it Stood. Jacob, L. D. h.t.
SCOLD. A woman who by her habit of scolding becomes a nuisance to the
neighborhood, is called a common scold. Vide Common Scold.
SCOT AND LOT, Eng. law. The name of a customary contribution, laid upon all
the subjects according to their ability.
SCOUNDREL. An opprobrious title given to a person of bad character. General
damages will not lie for calling a man a scoundrel, but special damages may
be recovered when there has been an actual loss. 2 Bouv: Inst. n. 2250; 1
Chit. Pr. 44.
SCRIPT, conv. The original or principal instrument, where there are part and
counterpart. Vide Chirograph; Part, Rescript.
SCRIVENER. A person whose, business it is to write deeds and other
instruments for others; a conveyancer.
2. Money scriveners are those who are engaged in procuring money to be
lent on mortgages and other securities, and lending such money accordingly.
They act also as agents for the purchase and sale of real estates.
3. To be considered a money scrivener, a person must be concerned in
carrying on the trade or profession as a means of making a livelihood. He
must in the course of his occupation receive other men's moneys into his
trust and custody, to lay out for them as occasion offers. 3 Camp. R. 538; 2
Esp. Cas. 555.
SCROLL. A mark which is to supply the place of a seal, made with a pen or
other instrument on a writing.
2. In some of the states this has all the efficacy of a seal. 1, S. &
R. 72; 1 Wash. 42; 2 McCord, 380; 4 McCord 267; 3 Blackf. 161; 3 Gill &
John. 234; 2 Halst. 272. Vide Seal; 2 Serg. & Rawle, 504; 2 Rep. 5. a; Perk.
Sec. 129. In others, a scroll has no such effect; and when a suit is brought
on an instrument sealed with a scroll, the act of limitations may be pleaded
to it, as to a simple contract. 2 Rand. 446; 6 Halst. 174; 5 John. 239; 1
Blackf. 241; Griff. Law Reg., answers to question No 110.
SCUTAGE, old Eng. law. The name of a tax or contribution raised for the use
of the king's armies by those who held lands by knight's service.
SCYREGEMOTE. The name of a court among the Saxons. It was the court of the
shire, in Latin called curia comitatus, and the principal court among the
Saxons. It was holden twice a year for determining all causes both
ecclesiastical and secular.
SE DEFENDENDO, criminal law. Defending himself.
2. Homicide, se defendendo, is that which takes place upon a sudden
rencounter, where two persons upon a sudden quarrel, without premeditation
or malice, fight upon equal terms, and one, before a mortal stroke has been
given, declines any further combat, and retreats as far as he can with
safety, and kills his adversary, through necessity, to avoid immediate
death. 2 Swift's Dig. 289 pamphl. Rep. of Selfridge's, Trial in, 1805 Hawk.
bk. 1, c. 11, s. 13; 2 Russ. on Cr. 543; Bac. Ab. Murder, &c F 2.
SEA. The ocean; the great mass of waters which surrounds the land, and which
probably extends from pole to pole, covering nearly three quarters of the
globe. Waters within the ebb and flow of the tide, are to be considered the
sea. Gilp. R. 526.
2. The sea is public and common to all people, and every person has an
equal right to navigate it, or to fish there; Ang. on Tide Wat. 44 to 49;
Dane's Abr. c. 68, a. 3, 4; Inst. 2, 1, 1; and to land upon the sea, shore.
(q.v.)
3. Every nation has jurisdiction to the distance of a cannon shot, (q,
v.) or marine league, over the water adjacent to its shore. 2 Cranch, 187,
234; 1 Circuit Rep. 62; Bynk. Qu. Pub. Juris. 61; 1 Azuni Mar. Law, 204; Id.
185; Vattel, 207:
SEA LETTER OR SEA BRIEF, maritime law. A document which should be found on
board of every neutral ship; it specifies the nature and quantity of the
cargo, the place from whence it comes, and its destination. Chit. Law of
Nat. 197; 1 John. 192.
SEA SHORE, property. That space of land, on the border of the sea, which is
alternately covered and left dry, by the rising and falling of the tide or,
in other words, that space of land between high and low water mark. Hargr,
Tr. 12; 6 Mass. 435, 439; 1 Pick. 180, 182; 5 Day, 22.
2. Generally, the sea shore belongs to the public. Angell on Tide Wat.
34, 5; 3 Kent's Com. 347.
3. By the Roman law, the shore included the land as far as the greatest
wave extended in winter; est autem littus, maris, quatenus hibernus, fluctus
maximus excurrit. Inst. lib. 2, t. 1, s. 3. Littus publicum est eatenus qua
maxime fluctus exaestuat. Dig., lib, 50, t. 16, s. 112.
4. The Civil Code of Louisiana seems to have followed the law of the
Institutes and the Digest, for it enacts, art. 442, that the "sea shore is
that space, of land over which the waters of the sea are spread in the
highest water, during the winter season." Vide. 5 Rob. Adm. R. 182; Dougl.
425; 1 Halst. R. 1; 2 Roll. Ab. 170; Dyer, 326; 5 Co. 107; Bac. Ab., Courts
of Admiralty,, A; 1 Am. Law Mag. 76; 16 Pet. R. 234, 367 Ang. on Tide
Waters, Index, tit. Shore; 2 Bligh's N, S. 146; 5 M. & W. 327 Merl. Quest.
de Droit, mots Rivage de la Mer; Inst. 2, 1, 2; 22 Maine, R. 350. For the
law of Mass. vide Dane's Ab. c. 68, a 3, 4.
SEA WEED. A species of grass which grows in the sea.
2. When cast upon land, it belongs to the owner of the land adjoining
the sea shore; upon the grounds, that it increases gradually, that it is
useful as manure and a protection to the ground, and that it is some
compensation for the encroachments of the sea upon the land. 2 John. R. 313,
323. Vide 5 Verm. R. 223.
3. The French differs from our law in this respect, as sea weeds there,
when cast on the beach, belong to the first occupant. Dall. Dict. Propriete,
art. 3, Sec. 2, n. 128.
SEA WORTHINESS, mer. law. The ability of a ship or other vessel to make a
sea voyage with probable safety: there is, in every insurance, whether on
ship or goods, an implied warranty that the ship shall be worthy when she
sails on the voyage insured; that is, that she shall be "tight, staunch, and
strong, properly manned, provided with all necessary stores, and in all
respects fit for the intended voyage." Marsh. Ins. 153 2 Phil. Ev. 60 10
Johns. R. 58.
2. The following rules have been established in regard, to the warranty
of sea-worthiness.
3.-1. That it is of no consequence whether the insured was aware of the
condition of the ship, or not. His innocence or ignorance is no answer to
the fact that the ship was not sea-worthy.
4.-2. The opinion of carpenters who have repaired the vessel, however
they may strengthen the presumption that the ship is sea-worthy, when it is
favorable, is not conclusive of the fact of sea-worthiness. 4 Dow's Rep.
269.
5.-3. The presumption, prima facie, is for sea-worthiness. 1 Dow's R.
336; And it is presumed that a vessel continues sea-worthy, if she was so at
the inception of the risk. 20 Pick. 389. See 1 Brev. 252.
6.-4. Any sort of disrepair left in the ship, by which she, or the
cargo may suffer, is a breach of the warranty of sea-worthiness.
7.-5. A deficiency of force in the crew, or of skill in the master,
mate, &c., is a want of sea-worthiness. 1 Campb. 1; 14 East, R. 481. But if
there was once a sufficient crew, their temporary absence will not be
considered a breach of the warranty. 2 Barn. & Ald. 73; 1 John. Cas. 184; 1
Pet. 183.
8.-6. A vessel may be rendered not sea-worthy by being overloaded. 2
Barn. & Ald. 320.
9.-7. When the sea-worthiness arises from justifiable ignorance of the
cause of the defect, and is discovered and remedied before any injury
occurs, it is not to be considered as a defect. Ib. See, generally, 2 John.
124, 129; 3 John. Cas. 76; 1 John. 241; 1 Caines, 217 3 S. & R. 25 1 Whart.
399.
10. By an act of congress, approved July 20, 1840, as amended, by the
act of July 29, 1850, it is provided, that if the first officer, (or a
second and third officer,) and a majority of the crew of any vessel, shall
make complaint in writing that she is in an unsuitable condition to go to
sea, because she is leaky, or insufficiently supplied with sails, rigging,
anchors, or any other equipment, or that the crew is insufficient to man
her, or that her provisions, stores, and supplies are not, or have not been,
during the voyage, sufficient and wholesome, thereupon, in any of these or
like cases, the consul or commercial agent who may discharge any duties of a
consul shall appoint two disinterested, competent, practical men, acquainted
with maritime affairs, to examine into the causes of complaint, who shall,
in their report, state what defects and deficiencies, if any they find to be
well founded, as well as what, in their judgment ought to be done, to put
the vessel in order for the continuance of her voyage.
SEAL, conveyancing, contracts. A seal is an impression upon wax, wafer, or
some other tenacious substance capable of being impressed. 5 Johns. R. 239.
Lord Coke defines a seal to be wax, with an impression. 3 Inst. 169.
"Sigillum," says he, "est cera impressa, quia cera sine impressione non est
sigillum." This is the common law definition of a seal. Perk. 129, 134; Bro.
tit. Faits, 17, 30; 2 Leon 21; 5 John. 239; 2 Caines, R. 362; 21 Pick. R.
417.
2. But in Pennsylvania, New Jersey, and the southern and western states
generally, the impression upon wax has been disused, and a circular, oval,
or square mark, opposite the name of the signer, has the same effect as a
seal the shape of it however is indifferent; and it is usually written with
a pen. 2 Serg. & Rawle, 503; 1 Dall. 63; 1 Serg. & Rawle, 72; 1 Watts, R.
322; 2 Halst. R. 272.
3. A notary must use his official seal, to authenticate his official
acts, and a scroll will not answer. 4 Blackf. R. 185. As to the effects of a
seal, vide Phil. Ev. Index, h.t. Vide, generally, 13 Vin. Ab. 19; 4 Kent,
Com. 444; 7 Caines' Cas. 1; Com. Dig. Fait, A 2.
4. Merlin defines a real to be a plate of metal with a flat surface, on
which is engraved the arms of a prince or nation, or private individual or
other device, with which an impression may be made on wax or other substance
on paper or parchment, in order to authenticate them: the impression thus
made is also called a seal. Repert. mot Sceau; 3 McCord's R. 583; 5 Whart.
R. 563.
5. When a seal is affixed to an instrument, it makes it a specialty,
(q.v.) and whether the seal be affixed by a corporation or an individual the
effect is the same. 15 Wend. 256.
6. Where an instrument concludes with the words, "witness our hands and
seals," and is signed by two persons, with only one seal, the jury may
infer, from the face of the paper, that the person who signed last, adopted
the seal of the first. 6 Penn. St. Rep. 302. Vide 9 Am Jur. 290-297; 1 Ohio
Rep. 368; 3 John. 470. 12 ohu. 76; as to the origin and use of seals, Addis.
on Cont. 6; Scroll.
7. The public seal of a foreign state, proves itself; and public acts,
decrees and judgments, exemplified under this seal, are received as true and
genuine. 2 Cranch, 187, 238; 4 Dall. 416; 7 Wheat. 273, 335; 1 Denio, 376; 2
Conn. 85, 90; 6 Wend. 475; 9 Mod. 66. But to entitle its seal to such
authority, the foreign state must have been acknowledged by the government,
within whose jurisdiction the forum is located. 3 Wheat. 610; 9 Ves. 347.
SEAL-OFFICE, English practice. The office at which certain judicial writs
are sealed with the prerogative seal, and without which they are of no
authority. The officer whose duty it is to seal such writs is called "sealer
of writs;"
SEAL OF THE UNITED STATES, government. The seal used by the United States in
congress assembled, shall be the seal of the United States, viz.: ARMS,
pale-ways of thirteen pieces argent and gules; a chief azure; the escutcheon
on the breast of the American eagle displayer proper, holding in his dexter
talon, an olive branch, and in his sinister, a bundle of thirteen arrows,
all proper, and in his beak a scroll, inscribed with this motto, "E pluribus
unum." For the CREST: over the head of the eagle which appears above the
escutcheon, a glory, or breaking through a cloud, proper, and surrounding
thirteen stars, forming a constellation argent on an azure field. REVERSE, a
pyramid unfinished. In the zenith an eye in a triangle, surrounded with a
glory proper: over the eye, these words, "Annuit caeptis." On the base of
the pyramid, the numerical letters, MDCCLXXVI; and underneath, the following
motto, "Novus ordo seclorum." Resolution of Congress, June 20, 1782;
Gordon's Dig. art. 207.
SEALING OF A VERDICT, practice. The putting a verdict in writing, and
placing it in an envelop, which is sealed. To relieve jurors after they have
agreed, it is not unusual for the counsel to agree that the jury shall seal
their verdict, and then separate. When the court is again in session, the
jury come in and give their verdict, in all respects as if it had not been
sealed, and a juror may dissent from it, if since the sealing, he has
honestly changed his mind. 8 Ham. 405; Gilm. 333; 3 Bouv. Inst. n. 3257.
SEALS, matters of succession. On the death of a person, according to the
laws of Louisiana, if the heir wishes to obtain the benefit of inventory,
and the delays for deliberating, he is bound as soon as he knows of the
death of the deceased to whose succession he is called, and before
committing any act of heirship, to cause the seals to be affixed on the
effects of the succession, by any judge or justice of the peace. Civ. Code,
of Lo. art. 1027.
2. In ten days after this affixing of the seals, the, heir is bound to
present a petition to the judge of the place in which the succession, is
opened, praying for the removal of the seals, and that a true and faithful
inventory of the effects of the succession be made. Id. art. 1028.
3. In case of vacant estates, and estates of which the heirs are absent
and not represented, the seals, after the decease, must be affixed by a
judge or justice of the peace within the limits of his jurisdiction, and may
be fixed by him, either ex officio, or at the request of the parties. Civ.
Code of Lo. art. 1070. The seals are affixed at the request of the parties,
when a widow, a testamentary executor, or any other person who pretends to
have an interest in a succession or community of property, requires it. Id.
art. 1071.; They are affixed ex officio, when the presumptive heirs of the
deceased do not all reside in the place where be died, or if any of them
happen to be absent. Id. art 1072.
4. The object of placing the seals on the effects of a succession, is
for the purpose of preserving them, and for the interest of third persons.
Id. art. 1068.
5. The seals must be placed on the bureaus, coffers, armoires, and
other things, which contain the effects and papers of the deceased, and on
the doors of the apartments which contain these things, so that they cannot
be opened without tearing off, breaking, or altering the seals. Id. art.
1069.
6. The judge or justice of the peace, who affixes the seals, is bound
to appoint guardian, at the expense of the succession, to take care of the
seals and of the effects, of which an account is taken at the end of the
proces verbal of the affixing of the seals; the guardian must be
domiciliated in the place where the inventory is taken. Id. art. 1079. And
the judge; when he retires, must take with him the keys of all things and
apartments upon which the seals have been affixed. lb.
7. The raising of the seals is done by the judge of the place, or
justice of the peace appointed by him to that effect, in the presence of the
witnesses of the vicinage, in the same manner as for the affixing of the
seals. Id. art. 1084. See, generally; Benefit of Inventory, Succession; Code
de Pro. Civ. 2e part. lib. 1, t. 1, 2, 3; Dict. de Jurisp. Scelle.
SEAMAN. A sailor; a mariner; one whose business is navigation. 2 Boulay
Paty, Dr. Com. 232; Code de Commerce art. 262; Laws of Oleron, art. 7; Laws
of Wishuy, art. 19. The term seamen, in it most enlarged sense, includes the
captain a well as other persons of the crew; in a more confined
signification, it extends only to the common sailors; 3 Pardes. n. 667; the
mate; 1 Pet. Adm. Dee. 246; the cook and steward; 2 Id. 268; are considered,
as to their rights to sue in the admiralty, as common seamen; and persons
employed on board of steamboats and lighters, engaged in trade or commerce,
on tide water, are within the admiralty jurisdiction, while those employed
in ferry boats are not. Gilp. R. 203, 532. Persons who do not contribute
their aid in navigating the vessel or to its preservation in the course of
their occupation, as musicians, are not to be considered as seamen with a
right to sue in the admiralty for their wages. Gilp. R. 516, See 1 Bell's
Com. 509, 5th ed.; 2 Rob. Adm. R. 232; Dunl. Adm. Pr. h.t.
2. Seamen are employed either in merchant vessels for private service,
or in public vessels for the service of the United States.
3.-1. Seamen in the merchant vessels are required to enter into a
contract in writing commonly called shipping articles. (q.v.) This contract
being entered into, they are bound under. severe penalties, to render
themselves on board the vessel according to the agreement: they are not at
liberty to leave the ship without the consent of the captain or commanding
officer, and for such absence, when less than forty-eight hours, they
forfeit three day's wages for every day of absence; and when the absence is
more than forty-eight hours, at one time, they forfeit all the wages due to
them, and all their goods and chattels which were on board the vessel, or in
any store where they may have been lodged at the time of their desertion, to
the use of the owners of the vessel, and they are liable for damages for
hiring other hands. They may be imprisoned for desertion until the ship is
ready to bail.
4. On board, a seaman is bound to do his duty to the utmost of his
ability; and when his services are required for extraordinary exertions,
either in consequence of the death of other seamen, Or on account of
unforeseen perils, he is not entitled to an increase of wages, although it
may have been promised to him. 2 Campb. 317; Peake's N. P. Rep. 72; 1 T. R.
73. For disobedience of orders he may be imprisoned or punished with
stripes, but the correction (q.v.) must be reasonable; 4 Mason, 508; Bee,
161; 2 Day, 294; 1 Wash. C. C. R. 316; and, for just cause, may be put
ashore in a foreign country. 1 Pet. Adm. R. 186; 2 Ibid. 268; 2 East, Rep.
145. By act of Congress, September 28, 1850, Minot's Stat. at Large, U. S.
p. 515, it is provided, that flogging in the navy and on board vessels of
commerce, be, and the same is hereby abolished from and after the passage of
this act.
5. Seamen are entitled to their wages, of which one-third is due at
every port at which the vessel shall unlade and deliver her cargo, before
the voyage be ended; and at the end of the voyage an easy and speedy remedy
is given them to recover all unpaid wages. When taken sick a seaman is
entitled to medical advice and aid at the expense of the ship: such expense
being considered in, the nature of additional wages, and as constituting a
just remuneration for his labor and services. Gilp. 435, 447; 2 Mason, 541;
2 Mass. R. 541.
6. The right of seamen to wages is founded not in the shipping
articles, but in the services performed; Bee, 395; and to recover such wages
the seaman has a triple remedy, against the vessel, the owner, and the
master. Gilp. 592; Bee, 254.
7. When destitute in foreign ports, American consuls and commercial
agents are required to provide for them, and for their passages to some port
of the United States, in a reasonable manner, at the expense of the United
States; and American vessels are bound to take such seamen on board at the
request of the consul, but not exceeding two men for every hundred tons of
the ship, and transport them to the United States, on such terms, not
exceeding ten dollars for each person, as may be agreed on. Vide, generally,
Story's Laws U. S. Index, h.t.; 3 Kent, Com, 136 to 156; Marsh. Ins. 90;
Poth. Mar. Contr. translated by Cushing, Index, h.t.; 2 Bro. Civ. and Adm.
Law, 155.
8.-2. Seamen in the public service are governed by particular laws.
SEAMEN'S FUND. By the act of July 16, 1798, a provision is made for raising
a fund for the relief of disabled and sick seamen: the master of every
vessel arriving from a foreign port into the United States is required to
pay to the collector of customs at the rate of twenty cents per month for
every seaman employed on board of his vessel, which sum he may, retain out
of the wages of such seaman: vessels engaged in the coasting trade, and
boats, rafts or flats navigating the Mississippi, with intention to proceed
to New Orleans, are also laid under similar obligations. The fund thus
raised is to be employed by the president of the United States as
circumstances shall require, for the benefit and convenience of sick and
disabled American seamen. Act of March 3, 1802, s. 1.
2. By the act of congress, passed February 28, 1803, c. 62, 2 Story's
L. U. S. 884, it is provided, that when a seaman is discharged in a foreign
country with his own consent, or when the ship is sold there, he shall, in
addition to his usual wages, be paid three months' wages into the hands of
the American consul, two-thirds of which are to be paid to such seaman, on
his engagement on board any vessel to return home, and the remaining one-
third is retained in aid of a fund for the relief of distressed American
seamen in foreign ports. See 11 John. R. 66; 12 John. Rep. 143; 1 Mason, R.
45; 4 Mason, R. 541; Edw. Adm. R. 239.
SEARCH, crim. law. An examination of a man's house, premises or person, for
the purpose of discovering proof of his guilt in relation to some crime or
misdemeanor of which be is accused.
2. The constitution of the United. States, amendments, art. 4, protects
the people from unreasonable searches and seizures. 3 Story, Const. Sec.
1895; Rawle, Const. ch. 10, p. 127; 10 John. R. 263; 11 John. R. 500; 3
Cranch, 447.
3. By the act of March 2, 1799, s. 68, 1 Story's L. U. S. 632, it is
enacted, that every collector, naval officer, and surveyor, or other person
specially appointed, by either of them, for that purpose, shall have fall
power and authority to enter any ship or vessel, in which they shall have
reason to suspect any goods, wares, or merchandise, subject to duty, are
concealed, and therein to search for, seize, and secure any such goods,
wares, or merchandise; and if they shall have cause to suspect a concealment
thereof in any particular dwelling house, store, building, or other place
they or either of them shall; upon proper application, on oath, to any
justice of the peace, be entitled to a warrant to enter such house, store,
or other place, (in the day time only, and there to search for such goods;
and if any shall be found, to seize and secure the same for trial; and all
such goods, wares, and merchandise, on which the duties shall not have been
paid, or secured to be paid, shall be forfeited.
SEARCH, practice. An examination made in the proper lien office for
mortgages, liens, judgments, or other encumbrances, against real estate. The
certificate given by the officer as to the result of such examination is
also called a search.
2. Conveyancers and others who cause searches to be made ought to be
very careful that they should be correct, with regard, 1. To the time during
which the person against whom the search has been made owned the premises.
2. To the property searched against, which ought to be properly described.
3. To the form of the certificate of search.
SEARCH, RIGHT OF, mar. law. The right existing in a belligerent to examine
and inspect the papers of a neutral vessel at sea. On the continent of
Europe, this is called the right of visit. Dalloz, Dict. mots Prises
Maritimes, n. 104-111.
2. The right does not extend to examine the cargo; nor does it extend
to a ship of war, it being strictly confined to the searching of merchant
vessels. The exercise of the right is to prevent the commerce of contraband
goods. Although frequently resisted by powerful neutral nations, yet this
right appears now to be fixed beyond contravention. The penalty for
violently resisting this right is the confiscation of the property so
withheld from visitation. Unless in extreme cases of gross abuse of his
right by a belligerent, the neutral has no right to resist a search. 1 Kent,
Com. 154; 2 Bro. Civ. and Adm. Law, 319; Mann. Comm. B. 3, c. 11.
SEARCH WARRANT, crim. law, practice. A warrant (q.v.) requiring the officer
to whom it is addressed, to search a house or other place therein specified,
for property therein alleged to have been stolen; and if the same shall be
found upon such search, to bring the goods so found, together with the body
of the person occupying the same, who is named, before the justice or other
officer granting the warrant, or some other justice of the peace, or other
lawfully authorized officer. It should be given under the hand and seal of
the justice, and dated.
2. The constitution of the United States, amendments, art. 4, declares
that "the right of the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures, shall not be
violated; and no warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be searched,
and the person or things to be seized."
3. Lord Hale, 2 P. C. 149, 150, recommends great caution in granting
such warrants. 1. That they be, not granted without oath made before a
justice of a felony committed, and that the complainant has probable cause
to suspect they are in such a house or place, and his reasons for such
suspicion. 2. That such warrants express that the search shall be made in
day time. 3. That they ought to be directed to a constable or other proper
officer, and not to a private person. 4. A search warrant ought to command
the officer to bring the stolen goods and the person in whose custody they
are, before some justice of the peace. Vide 1 Chit. Cr. Law, 57, 64; 4 Inst.
176; Hawk. B. 2, c. 13, s. 17, n. 6; 11 St. Tr; 321; 2 Wils. 149, 291;
Burn's Just. h.t.; Williams' Just. h.t.
SEARCHER, Eng. law. An officer of the customs, whose duty it is to examine
and search all ships outward bound, to ascertain whether they have any
prohibited or uncustomed goods on board.
SECK. This word has two significations. 1. It means a warrant of remedy by
distress. Litt. s. 218; and vide Rent. 2. It imports want of present fruit
or profit, as in the case of the reversion without rent or other service,
except fealty. Co. Litt. 151 b, note 5.
SECOND. A measure equal to one sixtieth part of a minute. Vide Measure.
SECOND DELIVERANCE, practice. The name of a writ given by statute of
Westminster the second, 13 Edw. 1. c. 2, founded on the record of a former
action of replevin. 2 Inst. 341. It commands the sheriff, if the plaintiff
make him secure of prosecuting his claim, and returning the chattels which
were adjudged to the defendant by reason of the plaintiff's default, to make
deliverance. On being nonsuited, the plaintiff in replevin might, at common
law, have brought another replevin, and so in infinitum, to the intolerable
vexation of the defendant. The statute of Westminster restrains the
plaintiff When nonsuited from so doing, but allows him this writ, issuing
out of the original record, in order to have the same distress delivered
again to him, on his giving the like security as before. 3 Bl. Com. 150,;
Hamm. N. P. 495; F. N. B. 68; 19 Vin. Ab. 1.
SECOND SURCHARGE, WRIT OF. The name of a writ issued in England against a
commoner who has a second time surcharged the common. 3 Bl. Com. 239.
SECONDARY, construction. That which comes after the first, which is primary:
as, the primary law of, nations the secondary law of nations.
SECONDARY, English law. An officer who is second or next to the chief
officer; as secondaries to the prothonotaries of the courts of king's bench,
or common pleas; secondary of the remembrancer in the exchequer, &c. Jacob,
L. D. h.t.
SECONDARY EVIDENCE. That species of proof which is admissible on the loss of
primary evidence, and which becomes, by that event, the best evidence. 3
Bouv. Inst. n. 3055.
SECONDS, crim. law. Those persons who assist, direct and support others
engaged in fighting a duel.
2. As they are often much to blame in inciting the duellists to their
rash act, and as they are always assisting in the commission of the crime,
the laws generally punish them with severity but, in consequence of the
false ideas too generally entertained on the subject of honor, the are too
seldom enforced.
SECRET. That which is not to be revealed.
2. Attorneys and counsellors, who have been trusted professionally with
the secrets of their clients, are not allowed to reveal them in a court of
justice. The right of secrecy belongs to the client, and not to the attorney
and counsellor.
3. As to the matter communicated, it extends to all cases where the
client applies for professional advice or assistance; and it does not appear
that the protection is qualified by any reference to proceedings pending or
in contemplation. Story, Eq. Pl. Sec. 600; 1 Milne & K. 104; 3 Sim. R. 467.
3. Documents confided professionally to the counsel cannot be demanded,
unless indeed the party would himself be bound to produce them. Hare on
Discov. 171. Grand jurors are sworn the commonwealth's secrets, their
fellows and their own to keep. Vide Confidential communications; Witness.
SECRET, rights. A knowledge of something which is unknown to others, out of
which a profit may be made; for example, an invention of a machine, or the
discovery of the effect of the combination of certain matters.
2. Instances have occurred of secrets of that kind being kept for many
years, but they are liable to constant detection. As such secrets are not
property, the possessors of them in general prefer making them public, and
securing the exclusive right for years, under the patent laws, to keeping
them in an insecure manner, without them. See Phil. on Pat. ch. 15; Gods. on
Pat. 171; Dav. Pat. Cas. 429; 8 Ves. 215; 2 Ves. & B. 218; 2 Mer. 446; 3
Mer. 157; 1 Jac. & W. 394; 1 Pick. 443; 4 Mason, 15; 3 B. & P. 630.
SECRETARY. An officer who, by order of his superior, writes letters and
other instruments. He is so called because he is possessed of the secrets of
his employer. This term wag used in France in 1343, and in England the term
secretary was first applied to the clerks of the king, who being always near
his person were called clerks of the secret, and in the reign of Henry VIII.
the term secretary of state came into it.
SECRETARY OF EMBASSY or OF LEGATION. An officer appointed by the sovereign
power, to accompany a minister of first or second rank, and sometimes,
though not often, of an inferior rank. He is, in fact, a species of public
minister; for independently of his protection as attached to an ambassador's
suite, be enjoys, in his own rights, the same protection of the law of
nations, and the same immunities as an ambassador. But private secretaries
of a minister must Dot be confounded with secretaries of embassy or of
legation. Such private secretaries are entitled to protection only as
belonging to the suite of the ambassador.
2. The functions of a secretary of legation consist in his employment
by his minister for objects of ceremony; in making verbal reports to the
secretary of state, or other foreign ministers; in taking care of the
archives of the mission; in ciphering and deciphering despatches; in
sometimes making rough draughts of the notes or letters which the minister
writes to his colleagues or to the local authorities; in drawup proces
verbaux; in presenting passports to the minister for his signature, and
delivering them to the persons for whom they are intended; and, finally, in
assisting the minister, under whom be is placed, in everything concerning
the affairs of the mission. In the absence of the minister he is admitted to
conferences and to present notes signed by the minister. Vide Ambassador;
Minister; Suite.
SECRETARY OF LEGATION. An officer employed to attend a foreign mission, and
to perform certain duties as clerk.
2. His salary is fixed by the act of congress of May 1, 1810, s. 1, at
such a sum as the president of the United States may allow, not exceeding
two thousand dollars.
3. The salary of a secretary of embassy, or the secretary of a minister
plenipotentiary, is the same as that of a secretary of legation.
SECRETARY OF THE NAVY, government. This officer is appointed by the
president. His duties are to execute all such orders as he shall receive
from the president, relative to the procurement of naval stores and
materials, and the construction, armament, equipment and employment of
vessels of war; as well as all other matters connected with the naval
establishment of the United States; act of 30th April, 1798, s. 1, 1 Story's
Laws, 498; he appoints his own clerks and subordinate officers. Various
other duties are imposed upon him by sundry acts of congress. Vide Gordon's
Dig. art. 370 to 375.
2. His salary is six thousand dollars. Act of 20th Feb. 1819, 3 Story's
Laws, 1720.
SECRETARY OF STATE OF THE UNITED STATES, government. The principal officer
in the Department of State. (q.v.) He shall perform such duties as shall be
enjoined on or entrusted to him by the president, agreeably to the
constitution, relative to the correspondences, commissions or instructions
to or with public ministers or consuls from the United States, or to
negotiations with foreign states or princes, or to memorials or other
applications from foreign public ministers or foreigners, or to such other
matters respecting foreign affairs as the president of the United States
shall assign to such department. The secretary shall conduct the business of
his department in such manner as the president shall, from time to time,
order or instruct. Act of 27th July, 1789 act of 15th Sept: 1789, s. 1.
Besides these general laws, there are various, others which impose upon him
inferior and less important duties.
2. His salary is six thousand dollars per annum. Act of 20th Feb. 1819.
SECRETARY OF THE TREASURY OF THE UNITED STATES, government. An officer
appointed by the president. His principal duties are, 1. To superintend the
collection of the revenue. 2. To digest, prepare, and lay before congress at
the commencement of every session, a report on the subject of finance. 3. To
annex to the annual estimates of the appropriations required for the public
service, a statement of the appropriations for the service of the year,
which may have been made by former acts. 4. To give information to either
house of congress, respecting all matters connected with his office. Besides
these, there are other minor duties imposed upon him by various acts of
congress.
2. His salary is six thousand dollars. Gord. Dig. art. 249 to 262.
SECRETARY FOR THE DEPARTMENT OF WAR, government. This officer is appointed
by the president. He is required to perform and execute such duties as
shall, from time to time, be enjoined on or entrusted to him by the
president, agreeably to the constitution, relative to military commissions
or to the land forces, or warlike stores of the United States, or to such
other matters respecting military affairs as the president shall assign to
the department of war, (q.v.) or relative to granting of lands to persons
entitled thereto for military services rendered to the United States, or
relative to Indian affairs. Act of 27th Aug., 1789, 1 Story's Laws, 31.
2. His salary is six thousand dollars per annum. Act of 20th Feb. 1819,
3 Story's Laws, 1720.
3. Various other duties are imposed upon the secretary by sundry acts
of congress. Vide Laws, Index, Departments, &c.; Gordon's Dig. art. 368 to
382.
SECTA pleading. In ancient times the plaintiff was required to establish the
truth of his declaration in the first instance, and before it was called in
question, upon the pleading, by the simultaneous production of his secta,
that is, a number of persons prepared to confirm his allegations. Bract.
214, a.
2. The practice of thus producing a secta, gave rise to the very.
ancient formula almost invariably used at the conclusion of a declaration,
as entered on the record, et inde producit sectam; and, though the actual
production has, for many centuries, fallen into disuse, the formula still
remains. Accordingly, except the count on a writ of right, and in dower, all
declarations constantly conclude thus, "And therefore he brings his suit,
&c. The count on a writ of right did not, in ancient times, conclude with
the ordinary production of suit, but with the following formula peculiar to
itself, "Et quod tale sit jus suum offert disrationare per corpus, talis
liberi hominis, &c., and it concludes, at the present day, with an
abbreviated. translation of the same phrase: "And, that such is his right,
he offers," &c. The count in dower is an exception to the rule in question,
and concludes without any production of suit, a peculiarity which appears
always to have belonged to that action. Steph. Pl. 427, 8; 3 Bl. Com. 395;
Gilb. C. P. 48; 1 Chit. Pl. 399.
SECTION OF LAND. The lands of the United States are surveyed into parcels of
six hundred and forty acres; each such parcel is called a section. 1 Story's
L. U. S. 422.
2. These sections are divided into half sections, each of which
contains three hundred and twenty acres, and into quarter sections of one
hundred and sixty acres each.
SECTORES. Among the Romans the bidders at an auction were so called. Bab. on
Auct. 2.
TO SECURE. To protect, insure, or save a right.
2. The constitution of the United States, art. 1, s. 8, gives power to
congress "to promote the progress of science and the useful arts by
securing, for limited times, to authors and inventors the exclusive right to
their respective writings and discoveries." The inventor of a machine has
the right to it exclusively at common law, and the author a right to his
manuscript. But they may abandon the, right by publishing the book without
having secured a copyright, (q.v.) or by using publicly the machine, and
suffering others to use it, without having obtained a patent. (q.v.) Vide
Secret.
SECURITY. That which renders a matter sure; an instrument which renders
certain the performance of a contract. The term is also sometimes applied to
designate a person who becomes the surety for another, or who engages
himself for the performance of another's contract. See 3 Blackf. R. 431.
SECURITY FOR COSTS, practice. In some courts there is a rule that when the
plaintiff resides abroad he shall give security for costs, and until that
has been done, when demanded, he cannot proceed in his action.
2. This is a right which the defendant must claim in proper time, for
if he once waives it, he cannot afterwards claim it; the waiver is seldom,
or perhaps never expressly made, but is generally implied from the acts of
the defendant. When the defendant had undertaken to accept short notice of
trial; 2 Hen. Bl. 573; 3 Taunt. 272 or after issue joined, and when he knew
of plaintiff's residence abroad; or, with such knowledge, when the defendant
takes any step in the cause these several acts will amount to a waiver. 5
Bar & Ald. 702; S. C. 1 Dow. & Ryl. 348; 1 M. & P. 30; S. C. 17 E. C. L. R.
164. Vide 3 John. Ch. R. 520; 1 John. Ch. Rep. 202; 1 Ves. jun. 396.
3. The fact that the defendant is out of the jurisdiction of the court,
will not, alone, authorize the requisition of security for costs; he must
have his domicil abroad. 1 Ves. jr. 396. When, the defendant resides abroad,
he will be required to give such security, although he is a foreign prince.
33 E. C. L. Rep. 214. Vide 11 S. & Rawle, 121 1 Miles, R. 321; 2 Miles, 402.
SECUS. Otherwise.
SEDITION, crimes. The raising commotions or disturbances in the state; it is
a revolt against legitimate authority, Ersk. Princ. Laws, Scotl. b. 4, t. 4,
s. 14; Dig. Lib. 49, t. 16, 1. 3, Sec. 19.
2. The distinction between sedition and treason consists in this, that
though its ultimate object is a violation of the public peace, or at least
such a course of measures as evidently engenders it, yet it does not aim at
direct and open violence against the laws, or the subversion of the
constitution. Alis. Crim. Law of Scotl. 580.
3. The. obnoxious and obsolete act of July 14, 1798, 1 Story's Laws U.
S. 543, was called the sedition law, because its professed object was to
prevent disturbances.
4. In the Scotch law, sedition is either verbal or real. Verbal is
inferred from the uttering of words tending to create discord between the
king and his people; real sedition is generally committed by convocating
together any considerable number of people, without lawful authority, under
the pretence of redressing some public grievance, to the disturbing of the
public peace. 1 Ersk. ut supra.
SEDUCTION. The offence of a man who abuses the simplicity and confidence of
a woman to obtain by false promises what she ought not to grant.
2. The woman being particeps criminis, has no remedy for the mere
seduction, nor is there, to the discredit of the law, a direct remedy in her
parents. The seducer may be sued, though not. directly or ostensibly for the
seduction; but for the consequent inability to perform those services for
which she was accountable to her master, or to her parent, who, for this
purpose, is obliged to assume that less endearing relation; and if it cannot
be proved that she filled that office, the action cannot be sustained. 7
Mann. & Gr. 1033. It follows, therefore, that when the daughter is of full
age, and the father is not entitled to her services, and actually, she is
not in his service, the father can maintain no action for the seduction. 5
Harr. & J. 27; 1 Wend. 447; 3 Pennsyl. 49; 10 John. 115. Vide 2 Watts 474; 9
John. 387; 2 Wend. 459; 5 Cowen 106; 2 Penn. 583; 6 Munf. 587; 2 A. K.
Marsh. 128; 2 Overt. 93; 9 John. R. 387; 2 New Reports, 476; 6 East, 887;
Peake's Rep. 253; 11 East, 24; 5 East, 45; 2 T. R. 4; 2 Selw. N. P. 1001; 2
Phil. Ev. 156; 3 Chitt. Bl. Com. 140, n.; 7 Com. Dig. 318; 6 M. & W. 55.
SEEDS. The substance which nature prepares for the reproduction of plants or
animals.
2. Seeds which have been sown in the earth immediately become a part of
the land in which they have been sown; quae sata solo cedere intelliguntur.
Inst. 2, 1, 32.
SEIGNIOR or SEIGNEUR. Among the feudists, this name signified lord of the
fee. F. N. B. 23. The most extended signification of this word includes not
only a lord or peer of parliament, but is applied to the owner or proprietor
of a thing; hence, the owner of a hawk, and the master of a fishing vessel,
is called a seigneur. 37 Edw. Ill. c. 19; Barr. on the Stat. 258.
SEIGNIORY, Eng. law. The rights of a lord as such, in lands. Swinb. 174.
SEISIN, estates. The possession of an estate of freehold. 8 N. H. Rep. 57; 3
Hamm. 220; 8 Litt. 134; 4 Mass. 408. Seisin was used in contradistinction to
that precarious kind of possession by which tenants in villenage held their
lands, which was considered to be the possession of their lords in, whom the
freehold continued.
2. Seisin is either in fact or in law.
3. Where a freehold estate is conveyed to a person by feoffment, with
livery of seisin, or by any of those conveyances which derive their effect
from the statute of uses, he acquires a seisin in deed or in fact, and a
freehold in deed: but where the freehold comes to a person by act of law, as
by descent, he only acquires a seisin in law, that is, a right of
possession, and his estate is called a freehold In law.
4. The seisin in law, which the heir acquires on the death of his
ancestor, May be defeated by the entry of a stranger, claiming a right to
the land, which is called an abatement. (q.v.)
5. The actual seisin of an estate may be lost by the forcible entry of
a stranger who thereby ousts or dispossesses the owner this act is called a
disseisin. (q.v.)
6. According to Lord Mansfield, the various alterations which have been
made in the law for the last three centuries, "have left us but the name of
feoffment, seisin, tenure, and, freeholder, without any precise knowledge of
the thing originally signified by these sounds."
7. In the United States, a conveyance by deed executed and
acknowledged, and properly recorded according to law, and the descent cast
upon the heir are, in general, considered as a seisin in deed without entry;
and a grant by letters-patent from the commonwealth has the same effect. 4
Mass. R. 546; 7 Mass. R. 494; 15. Mass. R. 214 1 Munf. R. 17O. The recording
of a deed is equivalent to livery of seisin. 4 Mass. 546.
8. In Pennsylvania, Connecticut, Massachusetts and Ohio, seisin means
merely, ownership, and the distinction between seisin in deed and in law is
not known in practice. Walk. Intr. 324, 330; 1 Hill. Abr. 24 4 Day, R. 305;
4 Mass.; R. 489 14 Pick. R. 224. A patent by the commonwealth, in Kentucky,
gives a, right entry, but not actual seisin. 3 Bibb, Rep. 57. Vide 1 Inst.
31; 19 Vin. Ab. 306; Dane's Abr. c. 104, a. 3; 4 Kent, Com. 2, 381; Cruise's
Dig. t. 1, Sec. 23; Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 1, n. 80; Poth.
Traite des Fiefs, part 1, c. 2; 3 Sumn. R. 170. Vide Livery of Seisin.
SEIZURE, practice. The act of taking possession of the property of a person
condemned by the judgment of a competent tribunal, to pay a certain sum of
money, by a sheriff, constable, or other officer, lawfully authorized
thereto, by virtue of an execution, for the purpose of having such property
sold according to law to satisfy the judgment. By seizure is also meant the
taking possession of goods for a violation of a public law; as the taking
possession of a ship for attempting an illicit trade. 2 Cranch, 18 7; 6
Cowen, 404; 4 Wheat. 100; 1 Gallis. 75; 2 Wash. C. C. 127, 567.
2. The seizure is complete as soon as the goods are within the power of
the officer. 3 Rawle's Rep. 401; 16 Johns. Rep. 287; 2 Nott & McCord, 392; 2
Rawle's Rep. 142; Wats. on Sher. 172; Com. Dig. Execution, C 5.
3. The taking of part of the goods in a house, however, by virtue of a
fieri facias in the name of the whole, is a good seizure of all. 8 East, R.
474. As the seizure must be made by virtue of an execution, it is evident
that it cannot be made after the return day. 2 Caine's Rep. 243; 4 John. R.
450. Vide Door; House; Search Warrant.
SELECTI JUDICES. Judges among the Romans who were selected very much like
our juries. They were returned by the praetor, drawn by lot, subject to be
challenged and sworn. 3 Bl. Com. 366.
SELF-DEFENCE, crim. law. The right to protect one's person and property from
injury.
2. It will be proper to consider, 1. The extent of the right of self-
defence. 2. By whom it may be exercised. 3. Against whom. 4. For what
causes.
3.-1. As to the extent of the right, it may be laid down, first, that
when threatened violence exists, it is the duty of the person threatened to
use all, prudent and precautionary measures to prevent the attack; for
example, if by closing a door which was usually left open, one could prevent
an attack, it would be prudent, and perhaps the law might require, that it
should be closed, in order to preserve the peace, and the aggressor might in
such case be held to bail for his good behaviour; secondly, if, after having
taken such proper precautions, a party should be assailed, he may
undoubtedly repel force by force, but in most instances cannot, under the
pretext that he has been attacked, use force enough to kill the assailant or
hurt him after he has secured himself from danger; as, if a person unarmed
enters a house to commit a larceny, while there he does not threaten any
one, nor does any act which manifests an intention to hurt any one, and
there are a number of persons present, who may easily secure him, no one
will be justifiable to do him any injury, much less to kill him; he ought to
be secured and delivered to the public authorities. But when an attack is
made by a thief under such circumstances, and it is impossible to ascertain
to what extent he may push it, the law does not requite the party assailed
to weigh with great nicety the probable extent of the attack, and he may use
the most violent means against his assailant, even to the taking of his
life. For homicide may be excused, se defendendo, where a man has no other
probable means of preserving his life from one who attacks him, while in the
commission of a felony, or even on a sudden quarrel, he beats him, so that
he is reduced to this inevitable necessity. Hawk. bk. 2, c. 11, s. 13. And
the reason is that when so reduced, he cannot call to his aid the power of
society or of the commonwealth, and, being unprotected by law, he reassumes
his natural rights, which the law sanctions, of killing his adversary to
protect himself. Toull. Dr. Civ. Fr. liv. 1, tit. 1, n. 210. See Pamph. Rep.
of Selfridge's Trial in 1806 2 Swift's Ev. 283.
4.-2. The party attacked may undoubtedly defend himself, and the law
further sanctions the mutual and reciprocal defence of such as stand in the
near relations of husband and wife, patent and child, and master and
servant. In these cases, if the party himself, or any of these his
relations, be forcibly attacked in their person or property, it is lawful
for him to repel force by force, for the law in these cases respects the
passions of the human mind, and makes, it lawful in him, when external
violence is offered to himself, or to those to whom he bears so near a
connexion, to do that immediate justice to which he is prompted by nature,
and which no prudential motives are strong enough to restrain. 2 Roll. Ab.
546; 1 Chit. Pr. 592.
5.-3. The party making the attack may be resisted, and if several
persons join in such attack they may all be resisted, and one may be killed
although he may not himself have given the immediate cause for such killing,
if by his presence and his acts, he has aided the assailant. See Conspiracy.
6.-4. The cases for which a man may defend himself are of two kinds;
first, when a felony is attempted, and, secondly, when, no felony is
attempted or apprehended.
7.-1st. A man may defend himself, and even commit a homicide for the
prevention of any forcible and atrocious crime, which if completed would
amount to a felony; and of course under the like circumstances, mayhem,
wounding and battery would be excusable at common law. 1 East, P. C. 271; 4
Bl. Com. 180. A man may repel force by force in defence of his person,
property or habitation, against any one who manifests, intends, attempts, or
endeavors, by violence or surprise, to commit a forcible felony, such as
murder, rape, robbery, arson, burglary and the like. In these cases he is
not required to retreat, but he may resist, and even pursue his adversary,
until he has secured himself from all danger.
8.-2d. A man may defend himself when no felony has been threatened or
attempted; 1. When the assailant attempts to beat another and there is no
mutual combat; as, where one meets another and attempts to commit or does
commit an assault and battery on him, the person attacked may defend
himself; and an offer or, attempt to strike another, when sufficiently near,
so that that there is danger, the person assailed may strike first, and is
not required to wait until he has been struck. Bull. N. P. 18; 2 Roll. Ab.
547. 2. When there is a mutual combat upon a sudden quarrel. In these cases
both parties are the aggressors; and if in the fight one is killed it will
be manslaughter at least, unless the survivor can prove two things: 1st.
That before the mortal stroke was given be had refused any further combat,
and had retreated as far as he could with safety; and 2d. That he killed his
adversary from necessity, to avoid his own destruction.
9. A man may defend himself against animals, and he may during the
attack kill them, but not afterwards. 1 Car. & P. 106; 13 John. 312; 10
John. 365.
10. As a general rule no man is allowed to defend himself with force if
he can apply to the law for redress, and the law gives him a complete
remedy, See Assault; Battery; Necessity; Trespass.
SELECTMEN. The name of certain officers in several of the United States, who
are invested by the statutes of the several states with various powers.
SELLER, contracts. One who disposes of a thing in consideration of money; a
vendor.
2. This term is more usually applied in the sale of chattels, that of
vendor in the sale of estates.
3. The duties of the seller are, 1. To deal with fairness. 2. To
deliver the thing sold at the time and place appointed, and to take care of
it until delivery; but when everything the seller has to do with the goods
is complete, the property and the risk of accident to the goods, rests in
the buyer, even before delivery, or payment. Noy's Max. ch. 24; 7 East, 571;
2 Bl. Com. 448. 3. To warrant the title of personal property when he sells
it as his own, when it is in his possession. 2 Kent, Com. 374; 1 Lord Raym.
593; 1 Salk. 210.
4. The rights of the seller are, 1. To be paid the price agreed upon.
2. To be indemnified for any expenses he may have incurred to preserve the
thing sold for the buyer, after the title to it has passed to the latter. 3.
To stop the thing in transitu when the buyer has failed and the price has
not been paid. See Stoppage, in transitu. Vide Purchaser, and the
authorities there cited; Bouv. Inst. Index, h.t.
SEMBLE. A French word which signifies, it seems. It is commonly used before
the statement of a point of law which has not been directly settled; but
about which the court have expressed an opinion, and intimated what it is.
SEMI-PROOF, civ. law. Presumptions of fact are so called. This degree of
proof is thus deaned[?]: "Non est ignorandum, probationem semiplenam eam
esse, per quam rei gestae fides aliqua fit judici; non tamen tanta ut jure
debeat in pronuncianda sententia eam sequi." Mascardus, De Prob. vol. 1,
Quaest. 11, n. 1, 4.
SEMINAUFRAGIUM. A term used by Italian lawyers, which literally signifies
half-shipwreck, and by which they understand the jetsam, or casting
merchandise into the sea to prevent shipwreck. Locre, Esp. du Code de Com.
art. 409. It also signifies the state of a vessel which has been so much
injured by tempest or accident, that to repair the damages, after being
brought into port, and prepare her for sea, would cost more than her worth.
4 Law Rep. 120.
SEMPER PARATUS. The name of a plea by which the defendant alleges that he
has always been ready to perform what is demanded of him. 3 Bl. Com. 303.
The same as Tout temps prist. (q.v.)
SEN. This is said to be an ancient word which signified justice. Co. Litt.
61 a.
SENATE, government. The less numerous branch of the legislature.
2. The constitution of the United States, article 1, s. 3, cl. 1,
directs that "the senate of the United States shall be composed of two
senators from each state, chosen by the legislature thereof for six years;
and each senator shall have one vote." The vice president of the United
States," to use the language of the constitution, art. 1, s. 3, cl. 4,
"shall be president of the senate, but shall have no vote unless they be
equally divided." In the senate each state in its political capacity, is
represented, upon a footing of perfect equality, like a congress of
sovereigns or ambassadors, or like an assembly of peers. It is unlike the
house of representatives. where the people are represented. Story, Const.
ch. 10.
3. The senate of the United States is invested with legislative,
executive and judicial powers.
4.-1. It is a legislative body whose concurrence is requisite to the
passage of every law. It may originate any bill, except those for raising
revenue, which shall originate in the house of representatives; but the
senate may propose or concur with amendments as on other bills. Const. art.
1, s. 7, el. I.
5.-2. The senate is invested with executive authority in concluding
treaties and making appointments. Vide President of the United States of
America.
6.-3. It is invested with judicial power when it is formed into a court
for the trial of impeachments. See Courts of the United States.
7. In most of the states the less numerous branch of the legislature
bears the title of senate. In such a body the people are represented as well
as in the other house. Vide article Congress; and, for the senates of the
several states, the name of each state. See, also, articles Courts of the
United States, I; House of Representatives; Vice-President of the United
States.
SENATOR, government. One who is a member of a senate.
2. No person shall be a senator [of the national senate] who shall not
have attained the age of thirty years, and been nine years a citizen of the
United States and who shall not when elected, be an inhabitant of that state
for which he shall be chosen. Const. U. S. art. 1, s. 3, cl. 5. Vide 1 Kent,
Com. 224 Story on the Const. 726 to 730.
SENATUS CONSULTUM, civ. law. A decree or decision of the Roman senate, which
had the force of law.
2. When the Roman people had so increased that there was no place where
they could meet, it was found necessary to consult the senate instead of the
people, both on public affairs and those which related to individuals. The
opinion which was rendered on such an occasion was called senatus consultum.
Inst. 1, 2, 5; Clef des Lois Rom. h.t.; Merl. Repert. h.t. These decrees
frequently derived their titles from the names of the consuls or magistrates
who proposed them; as, senatus-consultum Claudianum, Libonianum, Velleianum,
&c. from Claudius, Libonius, Valleius. Ail. Pand. 30.
SENESCHALLUS. A steward. Co. Litt. 61 a.
SENILITY. The state of being old.
2. Sometimes in this state it is exceedingly difficult to know whether
the individual is or is not so deprived of the powers of his mind as to be
unable to manage his affairs. In general, senility of energy in some of the
intellectual operations, while the affections remain natural and
unperverted; such a state may, however, be followed by actual dementia or
idiocy.
3. When on account of senility the party is unable to manage his
affairs, a committee will be appointed as in case of lunacy. 1 Coll. on
Lunacy, 66; 2 John. Ch. R. 232; 12 Ves. 446; 4 Call's R. 423; 5 John. Ch. R.
158; 8 Mass. 129; 2 Ves. sen. 407; 19 Ves. 285; 2 Cyclop. of Pract. Med.
872. See Aged Witness.
SENIOR. The elder. This addition is sometimes made to a man's name, when two
persons bear the same, in order to distinguish them. In practice when
nothing is mentioned, the senior is intended. 3 Miss. R. 59. See Junior.
SENTENCE. A judgment, or judicial declaration made by a judge in a cause.
The term judgment is more usually applied to civil, and sentence to criminal
proceedings.
2. Sentences are final, when they put, an end to the case; or
interlocutory, when they settle only some incidental matter which has arisen
in the course of its progress. Vide Aso & Man. Inst. B. 3, t. 8, c. 1.
SEPARALITER. Separately.
2. This word is sometimes used in indictments to show that the
defendants are charged separately with offences, which, without the addition
of this word, would seem, from the form of the indictment, to be charged
jointly; as, for example, when two persons are indicted together for
perjury, and the indictment states that A and B came before a commissioner,
&c., this is alleging that they were both guilty of the same crime, when by
law their crimes are distinct, and the indictment is vicious; but if the
word separaliter is used, then the affirmation is that each was guilty of a
separate offence. 2 Hale, P. C. 174.
SEPARATE ESTATE. That which belongs to one only of several persons; as, the
separate estate of a partner, which does not belong to the partnership. 2
Bouv. Inst. n. 1519.
2. The separate estate of a married woman, is that which belongs to
her, and over which her husband has no right in equity. It may consist of
lands or chattels. 4 Barb. S. C. Rep. 407; 1 Const. R. 452; 4 Bouv. Inst. n.
3996.
SEPARATE MAINTENANCE, contracts. An allowance made by a husband to his wife
for her separate support and maintenance.
2. When this allowance is regularly paid, and notice of it has been
given, no person who has received such notice will be entitled to recover
against the husband for necessaries furnished to the wife, because the
liability of the husband, depends on a presumption of authority delegated by
him to the wife, which is negatived by the facts of the case. 2 Stark. Ev.
699.
SEPARATE TRIAL, practice. The trial of one person by himself, when he is
jointly indicted with others for an alleged offence.
2. On a joint indictment against two or more defendants for a crime of
misdemeanor, it is in the discretion of the court whether to allow a
separate trial for each prisoner, or to order the whole of them to be tried
together. 1 Baldw. Rep. 81; 12 Wheat. 480; 5 Serg. & Rawle, 60; but see 1
Pet., C. C. Rep. 118.
SEPARATION, contracts. When the husband and wife agree to live apart they
are said to have made a separation.
2. Contracts of this kind are generally made by the husband for himself
and by the wife with trustees. 4 Paige's R. 516; 3 Paige's R. 483; 5 Bligh,
N. S. 339; 1 Dow & Clark, 519. This contract does not affect the marriage,
and the parties may, at any time agree to live together as husband and wife.
The husband who has agreed to a total separation cannot bring an action for
criminal conversation with the wife. Roper, Hush. and Wife, passim; 4 Vin.
Ab. 173; 2 Stark. Ev. 698; Shelf. on Mar. & Div. ch. 6, p. 608.
3. Reconciliation after separation supersedes special articles of
separation in courts of law and equity. 1 Dowl. P. C. 245; 2 Cox, R. 105; 3
Bro. C. C. 619, n.; 11 Ves. 532. Public policy forbids that parties should
be permitted to make agreements for themselves to hold good whenever they
choose to live separate. 5 Bligh, N. S. 367, 375; and see 1 Carr. & P. 36.
See 5 Bligh, N. S. 339; 2 Dowl. P. C. 332; 2 C. & M. 388; 3 John. Ch. R.
521; 2 Sim. & Stu. 372; 1 Edw. R. 380; Desaus. R. 45, 198; 1 Y. & C. 28; 11
Ves. 526; 2 East, R. 283; 8 N. H. Rep. 350; 1 Hoff. R. 1.
SEPULCHRE. The place where a corpse is buried. The violation of sepulchres
is a misdemeanor at common law. Vide Dead bodies.
TO SEQUESTER, civil and eccl. law. To renounce. Example, when a widow comes
into court and disclaims having anything to do, or to intermeddle with her
deceased husband's estate, she is said to sequester. Jacob, L. D. h.t.
SEQUESTRATION, chancery practice. The process of sequestration is a writ of
commission, sometimes directed to the sheriff, but most usually, to four or
more commissioners of the complainant's own nomination, authorizing them to
enter upon the real or personal estate of the defendant, and to take the
rents, issues and profits into their own hands, and keep possession of, or
pay the same as the court shall order and direct, until the party who is in
contempt shall do that which he is enjoined to do, and which is specially
mentioned in the writ. 1 Harr. Ch. 191; Newl. Ch. Pr. 18; Blake's Ch. Pr.
103.
2. Upon the return of non est inventus to a commission of rebellion, a
sergeant-at-arms may be moved for; and if he certifies that the defendant
cannot be taken, a motion may be made upon his certificate, for an order for
a sequestration. 2 Madd. Chan. 203; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
3. Under a sequestration upon mesne process, as in respect of a
contempt for want of appearance or answer, the sequestrators may take
possession of the party's personal property and keep him out of possession;
but no sale can take place, unless perhaps to pay expenses; for this process
is only to form the foundation of taking the bill pro confesso. After a
decree it may be sold. See 3 Bro. C. C. 72; 2 Cox, 224; 1 Ves. jr. 86; 3
Bro. C. C. 372; 2 Madd. Ch. Pr. 206. See, generally, as to this species of
sequestration, 19 Vin. Abr. 325; Bac. Ab. h.t.; Com.; Chancery, D 7, Y 4; 1
Hov. Supp. to Ves. jr. 25 to 29; 1 Vern. by Raith. 58, note 1; Id. 421, note
1.
SEQUESTRATION, contracts. A species of deposit, which two or more persons,
engaged in litigation about anything, make of the thing in contest to an
indifferent person, who binds himself to restore it when the issue is
decided, to the party to whom it is adjudged to belong. Louis. Code, art.
2942; Story on Bailm: Sec. 45. Vide 19 Vin. Ab. 325; 1 Supp. to Yes. jr. 29;
1 Vern. 58, 420; 2 Ves. jr. 23; Bac. Ab. h.t. 2. This is called a
conventional sequestration, to distinguish it from a judicial sequestration,
which is considered in the preceding article. Sec Dalloz, Dict. mot
Sequestre.
SEQUESTRATION, Louisiana practice. The Code of Practice in civil cases in
Louisiana, defines and makes the following provisions on the subject of
sequestration. Art. 269. Sequestration is a mandate of the court, ordering
the sheriff, in certain cases, to take in his possession, and to keep a
thing of which another person has the possession, until after the decision
of a suit, in order that it be delivered to him who shall be adjudged
entitled to have the property or possession of that thing. This is what is
properly called a judicial sequestration. Vide 1 Mart. R. 79; 1 L. R. 439;
Civil Code of Lo. 2941; 2948.
2.-Art. 270. In this acceptation, the word sequestration does not mean
a judicial deposit, because sequestration may exist together with the right
of administration, while mere deposit does not admit it.
3.-Art. 271. All species of property, real or personal, as well as the
revenue proceeding from the same, may be sequestered.
4.-Art. 272. Obligations and titles may also be sequestered, when their
ownership is in dispute.
5.-Art. 273. Judicial sequestration is generally ordered only at the
request of one of the parties to a suit; there are cases, nevertheless,
where it is decreed by the court without such request, or is the consequence
of the execution of judgments.
6.-Art. 274. The court may order, ex officio, the sequestration of real
property in suits, where the ownership of such property is in dispute and
when one of the contending parties does not seem to have a more apparent
right to the possession than the other. In such cases, sequestration may be
ordered to continue, until the question of ownership shall have been
decided.
7.-Art. 275. Sequestration may be ordered at the request of one of the
parties in a suit in the following cases: 1. When one who had possessed for
more than one year, has been evicted through violence, and sues to be
restored to his possession. 2. When one sues for the possession of movable
property, or of a slave, and fears that the party having possession, may ill
treat the slave or send either that slave, or the property in dispute, out
of the jurisdiction of the court, during the pendency of the suit. 3. When
one claims the ownership, or the possession of real property, and has good
ground to apprehend, that the defendant may make use of his possession to
dilapidate or to waste the fruits or revenues produced by such property, or
convert them to his own use. 4. When a woman sues for a separation from bed
and board, or only for a separation of property from her husband, and has
reason to apprehend that he will ruin her dotal property, or waste the
fruits or revenues produced by the same during the pendency of the action.
5. When one has petitioned for a stay of proceedings, and a meeting of his
creditors, and such creditors fear that he may avail himself of such stay of
proceedings, to place the whole, or a part of his property, out of their
reach. 6. A creditor by special mortgage shall have the power of
sequestering the mortgaged property, when he apprehends that it will be
removed out of the state before he can have the benefit of his mortgage, and
will make oath of the facts which induced his apprehension.
8.-Art. 276. A plaintiff wishing to obtain an order of sequestration in
any one of the cases above provided, must annex to the petition in which he
prays for such an order, an affidavit, setting forth the cause for which he
claims such order, he must besides, execute his obligation in favor of the
defendant, for such sum as the court shall determine, with the surety of one
good and solvent person, residing within the jurisdiction of the court, to
be responsible for such damages as the defendant may sustain, in case such
sequestration should have been wrongfully obtained.
9.-Art. 277. When security is given in order to obtain the
sequestration of real property which brings a revenue, the judge must
require that it be given for an amount sufficient to compensate the
defendant, not only for all damage which he may sustain, but also for the
privation of such revenue, during the pendency of the action.
10.-Art. 278. The plaintiff when he prays for a sequestration of the
property of one who has failed, is not required to give such security,
though that property bring in a revenue.
11.-Art. 279. A defendant against whom a mandate of sequestration has
been obtained, except in cases of failure, may have the same set aside, by
executing his obligation in favor of the sheriff, with one good and solvent
surety, for whatever amount the judge may determine, as being equal to the
value of the property to be left in his possession.
12.-Art. 280. The security thus given by the defendant, when the
property sequestrated consists in movables or in slaves, shall be
responsible that he shall not send away the same out of the jurisdiction of
the court; that he shall not make an improper use of them; and that he will
faithfully present them, after definitive judgment, in case he should be
decreed to restore the same to the plaintiff.
13.-Art. 281. As regards landed property, this security is given to
prevent the defendant, while in possession, from wasting the property, and
for the faithful restitution of the fruits that he may have received since
the demand, or of their value in the event of his being cast in the suit.
14.-Art. 282. When the sheriff has sequestered property pursuant to an
order of the court, he shall, after serving the petition and the copy of the
order of sequestration on the defendant, send him return in writing to the
clerk of the court which gave the order, stating in the same in what manner
the order was executed, and annex to such return a true and minute inventory
of the property sequestered, drawn by him, in the presence of two witnesses.
15.-Art. 283. The sheriff, while he retains possession of sequestered
property, is bound to take proper care of the same and to administer the
same, if it be of such nature as to admit of it, as a prudent father of a
family administers his own affairs. He may confide them to the care of
guardians or overseers, for whose acts he remains responsible, and he will
be entitled to receive a just compensation for his administration, to be
determined by the court, to be paid to him out of the proceeds of the
property sequestered, if judgment be given in favor of the plaintiff.
SEQUESTRATOR. One to whom a sequestration is made.
2. A depositary of this kind cannot exonerate himself from the care of
the thing sequestered in his hands, unless for some cause rendering it
indispensable that he should resign his trust. Louis. Code, art. 2947. See
Stakeholder. Sequestrators are also officers appointed by a court of
chancery, and named in a writ of sequestration. As to their powers and
duties, see 2 Madd. Ch. Pr. 205, 6; Blake's Ch. Pr. 103; Newl. Ch. Pr. 18,
19; 1 Harr. Ch. 191.
SERF. During the feudal times certain persons who were bound to perform very
onerous duties towards others, were so called. Poth. Des Personnes, p. 1, t.
1, a. 6, s. 4. There is this essential difference between a serf and a
slave; the serf was bound simply to labor on the soil where he was born,
without any right to go elsewhere without the consent of his lord; but he
was free to act as he pleased in his daily action: the slave on the contrary
is the property of his master, who may require him to act as he pleases in
every respect, and who may sell him as a chattel. Lepage, Science du Droit,
c. 3, art. 2, Sec. 2.
SERGEANT or SERJEANT, Eng. law. An officer in the courts of the highest
grade among the practitioners of the law.
SERGEANT or SERJEANT, in the army. An inferior officer of a company of foot,
or troop of dragoons appointed to see discipline observed, to teach the
soldiers the exercise of their arms, and to order, straighten and form
ranks, files, &c.
SERGEANT AT ARMS, An officer appointed by a legislative body, whose duties
are to enforce the orders given by such bodies, generally under the warrant
of its presiding officer.
SERIATIM. In a series, severally; as, the judges delivered their opinions
seriatim.
SERJEANTY, Eng. law. A species of service which cannot be due or performed
from a tenant to any lord but the king; and is either grand or petit
serjeanty.
SERVANTS, (negro or mulatto,) Pennsylvania. By the fourth section of the act
for the gradual abolition of slavery, passed the first day of March, 1780, 1
Smith's Laws of Penn. 492, it is "provided that every negro or mulatto
child, born within this state after the passing of this act, (who would in
case this act had not been made, have been a servant for years, or life, or
a slave) shall be by virtue of this act the servant of such person, or his
assigns who would in such case have been entitled to the service of such
child, until such child attain unto the age of twenty-eight years, in the
manner and on the conditions, whereon servants bound by indenture for four
years are or may be retained or holden; and shall be liable to like
correction and punishment, and entitled to like relief, in case he be evilly
treated by his master, and to like freedom dues and privileges, as servants
bound by indenture for four years are entitled, unless the person to whom
such services belong shall abandon his claim to the same; in which case the
overseers of the poor where such child shall be abandoned shall by indenture
bind out every such child so abandoned as an apprentice for a time not
exceeding the age hereinbefore limited for the service of such children."
And by the thirteenth section it is enacted, "that no covenant of personal
servitude or apprenticeship whatsoever shall be valid or binding on a negro
or mulatto for a longer time than seven years, unless such servant or
apprentice were at the commencement of such servitude or apprenticeship,
under the age of twenty-one years, in which case such negro or mulatto may
be holden as a servant or apprentice, respectively, according to the
covenant, as the case shall be, until he shall attain the age of twenty-
eight years, but no longer." See 6 Binn. 204; 1 Browne's R. 369, n.
2. The act requires that a register of such children as would have been
slaves shall be kept by a public officer therein designated. The want of
registry entitles such child to freedom.
SERVANTS. In Louisiana they are divided into free servants and slaves. See
Slaves; Slavery.
2. Free servants are, in general, all free persons who let, hire, or
engage their services to another in the state, to be employed therein at any
work, commerce, or occupation whatever, for the benefit of him who has
contracted with them, for a certain sum or retribution, or upon certain
conditions.
3. There are three kinds of free servants in the state, to wit:
4.-1. Those who only hire out their services by the day, week, month,
or year, in consideration of certain wages.
5.-2. Those who engage to serve for a fixed time for a certain
consideration, and who are therefore considered not as having hired out, but
as having sold their services.
6.-3. Apprentices that is, those who engage to serve any one, in order
to learn some art, trade, or profession. Civ. Code of Lo. art. 155, 156,
157.
SERVANTS, menial. Domestics those who receive wages, and who are lodged and
fed in the house of another, and who are employed in his services. Such
servants are not particularly recognized by law. They are called menial
servants, or domestics, from living infra moenia, within the walls of the
house. 1 Bl. Com. 324; Wood's Inst. 53; 1 Sw. Syst. 218. The right of the
master to their services in every respect is grounded on the contract
between them. 2. Laborers, or persons hired by the day's work, or any longer
time, are not considered servants. 1 Sw. Syst. 218; 5 Binn. 167; 3 Serg. &
Rawle, 351. Vide 12 Ves. 114; 2 Vern. 546; 16 Ves. 486; 1 Rop. on Leg. 121;
3 Deac. & Chit. 332; 1 Mont. & Bligh. 413; 2 Mart. N. S. 652; Poth. Proc.
Civ. sect. 2, art. 5, Sec. 5; Poth. Ob. n. 710, 828, French ed.; 9 Toull. n.
314; Domestic; Operative.
SERVI. This name was given by the Romans to their slaves; they were so
called from servare, to preserve, from the ancient practice of the generals
of the army, who were accustomed to sell their captives, and preserved them
rather than kill them: servi autem ex eo appellati sunt, quod imperatores
captivos vendere, ac per hoc servare, nec occidere solent. Inst. 1 3, 3.
SERVICE, contracts. The being employed to serve another.
2. In cases of seduction, the gist of the action is not injury which
the seducer has inflicted on the parent by destroying his peace of mind, and
the reputation of his child, but for the consequent inability to perform
those services for which she was accountable to her master or her parent who
assumes this character for the purpose Vide Seduction, and 2 Mees. & W. 539;
7 Car. & P. 528.
SERVICE, feudal law. That duty which the tenant owes to his lord, by reason
of his fee or estate.
2. The services, in respect of their quality, were either free or base,
and in respect of their quantity and the time of exacting them, were either
certain or uncertain. 2 Bl. Com. 62.
3. In the civil law by service is sometimes understood servitude.
(q.v.)
SERVICE, practice. To execute a writ or process; as, to serve a writ of
capias signifies to arrest a defendant under the process; Kirby, 48; 2 Aik.
R. 338; 11 Mass. 181; to serve a summons, is to deliver a copy of it at the
house of the party, or to deliver it to him personally, or to read it to
him; notices and other papers are served by delivering the same at the house
of the party, or to him in person.
2. When the service of a writ is prevented by the act of the party on
whom it is to be served, it will, in general, be sufficient if the officer
do everything in his power to serve it. 39 Eng. C. L. R. 431 1 M. & G. 238.
SERVIENT, civil law. A term applied to an estate or tenement by which a
servitude is due to another estate or tenement. See Dominant; Servitude.
SERVITUDE, civil law. A term which indicates the subjection of one person to
another person, or of a person to a thing, or of a thing to a person, or of
a thing to a thing.
2. Hence servitudes are divided into real, personal, and mixed. Lois
des Bat. P. 1, c. 1.
3. A real or predial servitude is a charge laid on an estate for the
use and utility of another estate belonging to another proprietor. Louis.
Code, art. 643. When used without any adjunct, the word servitude means a
real or predial servitude. Lois des Bat. P. 1, c. 1.
4. The subjection of one person to another is a purely personal
servitude; if it exists in the right of property which a person exercises
over another, it is slavery. When the subjection of one person to another is
not slavery, it consists simply in the right of requiring of another what he
is bound to do, or not to do; this right arises from all kinds of contracts
or quasi con tracts. Lois des Bat. P. 1, c. 1, art. 1.
5. The subjection of persons to things or of things to persons, are
mixed servitudes. Lois des Bat. P. 1, c. 1, art. 2.
6. Real servitudes are divided into rural and urban. Rural servitudes
are those which are due by an estate to another estate, such as the right of
passage over the serving estate, or that which owes the servitude, or to
draw water from it, or to water cattle there, or to take coal, lime and wood
from it, and the like. Urban servitudes are those which are established over
a building fur the convenience of another, such as the right of resting the
joists in the wall of the serving building, of opening windows which
overlook the serving estate, and the like. Dict. de Jurisp. tit. Servitudes.
See, generally, Lois des Bat. Part 1 Louis. Code, tit. 4; Code Civil, B. 2,
tit. 4; This Dict. tit. Ancient Lights; Easements; Ways; Lalaure, Des
Servitudes, passim.
SERVITUDES, NATURAL, civil law. Those servitudes which arise in consequence
of the nature of the soil.
2. By law the inferior heritages, are submitted in relation to the
natural flow of waters, and the like, to the superior. An inferior field is,
therefore, subject to the injury or prejudice which the situation of the
ground, in its natural state, way cause it.
SERVITUDES, personal. Those by which the property of a subject, in Scotland,
is burdened in favor, not of a tenement, but of a person. Ersk. Pr. L. Scot.
B. 2, t. 9, s. 23. Life rent is the only personal servitude there.
SERVITUS, civil law. A service or servitude; a burden imposed by law, or the
agreement of parties upon certain persons, for the benefit of others; or
upon one estate for the advantage of another, or for the benefit of another
person than the owner.
SERVITUS. Servitude; slavery; a state of bondage. "Servitus autem, est
constitutio," say the Institutes of Justinian, 1, 3, 2, "qua quis dominio
alieno contra naturam subjicitur." Servitude is a disposition of the law of
nations, by which, against common right, one man has been subjected to the
dominion of another. See Bract. 4 b; Co. Litt. 116.
SERVITUS LUMINUM, civil law. The name of a servitude by which an obligation
is imposed on the owner of a house to allow windows or lights to be put in
his wall by the owner of the adjoining house. Dig. 4, 14, 40.
SERVITUS STILLIClDII, civil law. The name of a servitude which obliges the
owner of an estate to receive, or his right to turn aside, the droppings or
stream from his neighbor's house. Dig. 8, 2, 20 and 21, 41; Voet, h.t. n.
13. Vide Stillicidium.
SERVITUS TIGNI IMMITTENDI, civil law. The name of a servitude which consists
in requiring him who owes it, to permit his neighbor to place his joists on
his wall. It differs from the servitude Oneris ferendi. (q.v.) in this, that
in the former the owner of the servient building is bound to repair and
rebuild the wall; whereas, in the latter he is not. Dig. lib. 8, Sec. 2.
SESSION. The time during which a legislative body, a court or other assembly
sits for the transaction of business; as, a session of congress, which
commences on the day appointed by the constitution, and ends when congress
finally adjourns before the commencement of the next session; the session of
a court, which commences at the day appointed by law, and ends when the
court finally rises a term.
SESSION COURT, or COURT OF SESSION. The highest civil court in the kingdom
of Scotland. The judges, called lords of the session, are fifteen in number.
2. It has extensive original jurisdiction, and its powers of review as
a court of appeal have no limits. In 1808, it was divided into two chambers,
called the first and second division; the lord president and seven judges
constituting the former, and the lord justice clerk, who is head of the
court of justiciary, with six judges, the latter. These divisions have
independent but coordinate jurisdiction.
3. The high court of justiciary, or supreme criminal jurisdiction for
Scotland consists of six judges, who are lords of the session, the lord
justice clerk presiding. In this court the number of the jury is fifteen,
and a majority decides. The court of session is divided into the inner house
and outer house, with appeal from the latter to the former, and from the
former to the house of lords of the United Kingdom. Encycl. Amer.
SET, contracts. Foreign bills of exchange are generally drawn in parts; as,
"pay this my first bill of exchange, second and third of the same tenor and
date not paid;" the whole of these parts, which make but one bill, are
called a set. Chit. Bills, 175, 6, (edition of 1836); 2 Pardess. n. 342.
TO SET ASIDE. To annul; to make void; as to set aside an award.
2. When proceedings are irregular they may be set aside on, motion of
the party whom they injuriously affect.
SET-OFF, contracts, practice. Defalcation; (q.v.) a demand which a defendant
makes against the plaintiff in the suit for the purpose of liquidating the
whole or a part of his claim.
2. A set-off was unknown to the common law, according to which mutual
debts were distinct and inextinguishable except by actual payment or
release. 1 Rawle's R. 293; Babb. on Set-off, 1.
3. The statute 2 Geo. II., c. 22, which has been generally adopted in
the United States with some modifications however, allowed, in cases of
mutual debts, the defendant to set his debt against the other, either by
pleading it in bar, or giving it in evidence, when proper notice had been
given of such intention, under the general issue. The statute being made for
the benefit of the defendant, is not compulsory; 8 Watts, R. 39; the
defendant may Waive his right, and bring a cross action against the
plaintiff. 2 Campb. 594; 5 Taunt. 148; 9 Watts, R. 179
4. It seems, however, that in some cases of intestate estates, and of
insolvent estates, perhaps owing to the peculiar wording of the law, the
statute has been held to operate on the rights of the parties before action
brought, or an act done by either of them. 2 Rawle's R. 293; 3 Binn. Rep.
135; Bac. Ab. Bankrupt K.
5. Set-off takes place only in actions on contracts for the payment of
money, as assumpsit, debt and covenant. A set-off is not allowed in actions
arising ex delicto, as, upon the case, trespass, replevin or detinue. Bull.
N. P. 181.
6. The matters which may be set off, may be mutual liquidated debts or
damages, but unliquidated damages cannot be set off. 1 Black. R. 394; 2
John. 150; 8 Conn. 325; 1 McCord, 7; 3 Wend. 400; 1 Stew. & Port. 19; 2
Yeates, 208; 1 Sumn. 471; 2 Blackf. 31; 1 A. K. Marsh. 41; 6 Halst. 397; 5
Wash. C. C. 232 3 Bibb, 49; 2 Caines, 33. The statutes refer only to mutual
unconnected debts; for at common law, when the nature of the employment,
transaction or dealings necessarily constitute an account consisting of
receipts and payments, debts and credits, the balance only is considered to
be the debt, and therefore in an action, it is not necessary in such cases
either to plead or give notice of set-off. 4 Burr. 2221.
7. In general, when the government is plaintiff, no set-off will be
allowed. 9 Pet. 319; 4 Dall. 303. See 9 Cranch, 313; Paine, 156. But when an
act of congress authorizes such set-off, it may be made. 9 Cranch, 213.
8. Judgments in the same rights may be set off against each other at
the discretion of the court. 3 Bibb 233; 3 Watts 78; 3 Halst. 172; 4 Hamm.
90; 1 Stew. & Port. 24; 7 Mass. 140, 144; 8 Cowen 126. Vide Compensation;
also Montagu on Set-off; Babington on Set-off; 3 Stark. Ev. h.t.; Amer. Dig.
h.t.; Whart. Dig. h.t.; 3 Chit. Bl. Com. 304, n.; 1 Chit. Pl. Index, h.t.; 8
Vin. Ab. 556; Bac. Ab. h.t. 1 Sell. Pr. 321; 5 Com. Dig. 595; 6 Id. 335; 7
Id. 336; 8 Id. 927; Chit. Pr. Index, h.t.; Bouv. Inst. Index, h.t. Vide
Factor.
TO SETTLE. To adjust or ascertain to pay.
2. Two contracting parties are said to settle an account when they
ascertain what is justly due by one to the other; when one pays the balance
or debt due by him, he is said to settle such debt or balance. 11 Alab. R.
419
SETTLEMENT, domicil. The right which a person has of being considered as
resident of a particular place.
2. It is obtained in various ways, to wit: 1. By birth. 2. By the legal
settlement of the father, in the case of minor children. 3. By marriage. 4.
By continued residence. 5. By the payment of requisite taxes. 6. By the
lawful exercise of a public office. 7. By hiring and service for a year. 8.
By serving an apprenticeship; and perhaps some others which depend upon the
local statutes of the different states. Vide 1 Bl. Com. 363; 1 Dougl. 9; 2
Watts' Rep. 44, 342; 2 Penna. R. 432; 5 Serg. & Rawle, 417; 2 Yeates' R. 51;
5 Binn. R. 81; 3 Binn. R.. 22; 6 Serg. & Rawle, 103, 565; 10 Serg. & Rawle,
179. Vide Domicil.
SETTLEMENT, contracts. The conveyance of an estate, for the benefit of some
person or persons.
2. It is usually made on the prospect of marriage for the benefit of
the married pair, or one of them, or for the benefit of some other persons,
as their children. Such settlements vest the property in trustees upon
specified terms, usually for the benefit of the husband and wife during
their joint lives, and then for the benefit of the survivor for life, and
afterwards for the benefit of children. Ante-nuptial agreements of this kind
will be enforced in equity by a specific performance of them, provided they
are fair and valid, and the intention of the parties is consistent with the
principles and policy of law. Settlements after marriage, if made in
pursuance of an agreement in writing entered into prior to the marriage, are
valid, both against creditors and purchasers.
4. When made without consideration, after marriage, and the property of
the husband is settled upon his wife and children, the settlement will be
valid against subsequent creditors, if, at the time of the settlement being
made, he was not indebted; but, if he was then indebted, it will be void as
to the creditors existing at the time of the settlement; 3 John. Ch. R. 481;
8 Wheat. R. 229; unless in cases where the husband received a fair
consideration in value of the thing settled, so as to repel the presumption
of fraud. 2 Ves. 16 10 Ves. 139. Vide 1 Madd. Ch. 459; 1 Chit. Pr. 57; 2
Kent, Com. 145; 2 Supp. to Ves. jr. 80, 375; Rob. Fr. Conv. 188. See Atherl.
on Mar. passim.
5. The term settlement is also applied to an agreement by which two or
more persons, who have dealings together, so far arrange their accounts, as
to ascertain the balance due from one to the other; and settlement sometimes
signifies a payment in full.
TO SEVER, practice. When defendants who are sued jointly have separate
defences, they may in general sever, that is, each one rely on his own
separate defence; each may plead severally and insist on his own separate
plea. See Severance.
SEVERAL. A state of separation or partition. A several agreement or
covenant, is one entered into by two or more persons separately, each
binding himself for the whole; a several action is one in which two or more
persons are separately charged; a several inheritance, is one conveyed so as
to descend, or come to two persons separately by moieties. Several is
usually opposed to joint. Vide 3 Rawle, 306. See Contract; Joint Contract,
Parties to action.
SEVERALTY, title to an estate. An estate in severalty is one which is held
by the tenant in his own right only, without any other being joined or
connected with him in point of interest, during the continuance of his
estate. 2 Bl. Com. 179. Cruise, Dig. 479, 480.
SEVERANCE, pleading. When an action is brought in the name of several
plaintiffs, in which the plaintiffs must of necessity join, and one or more
of the persons so named do not appear, or make default after appearance, the
other may have judgment of severance, or, as it is technically called,
judgment ad sequendum solum.
2. But in personal actions, with the exception of those by executors,
and of detinue for charters, there can be no summons and severance. Co. Lit.
139.
3. After severance, the party severed can never be mentioned in the
suit, nor derive any advantage from it.
4. When there are several defendants, each of them may use such plea
as, he may think proper for his own defence; and they may join in the same
plea, or sever at their discretion; Co. Litt. 303, a except perhaps, in the
case of dilatory pleas. Hob. 245, 250. But when the defendants have once
united in the plea, they cannot afterwards sever at the rejoinder, or other
later stage of the pleading. Vide, generally, Bro. Summ. and Sev.; 2 Rolle,
488; Archb. Civ. Pl. 59.
SEVERANCE, estates. The act by which any one of the unities of a joint
tenancy is effected, is so called; because the estate is no longer a joint
tenancy, but is severed.
2. A severance may be effected in various ways, namely: 1. By
partition, which is either voluntary or compulsory. 2. By alienation of one
of the joint tenants, which turns the estate into a tenancy in common. 3. By
the purchase or descent of all the shares of the joint tenants, so that the
whole estate becomes vested in one only. Com. Dig. Estates by Grant, K 5; 1
Binn. R. 175.
3. In another and a less technical sense, severance is the separation
of a part of a thing from another; for example, the separation of machinery
from a mill, is a severance, and, in that case, the machinery which while
annexed to the mill was real estate, becomes by the severance; personalty,
unless such severance be merely temporary. 8 Wend. R. 587.
SEWER. Properly a trench artificially made for the purpose of carrying water
into the sea, river, or some other place of reception. Public sewers are, in
general, made at the public expense. Crabb, R. P. Sec. 113.
SEX. The physical difference between male and female in animals.
2. In the human species the male is called man, (q.v.) and the female,
woman. (q.v.) Some human beings whose sexual organs are somewhat imperfect,
have acquired the name of hermaphrodite. (q.v.)
3. In the civil state the sex creates a difference among individuals.
Women cannot generally be elected or appointed to offices or service in
public capacities. In this our law agrees with that of other nations. The
civil law excluded women from all offices civil or public: Faemintae ab
omnibus officiis civilibus vel publicis remotae sunt. Dig. 50, 17, 2. The
principal reason of this exclusion is to encourage that modesty which is
natural to the female sex, and which renders them unqualified to mix and
contend with men; the pretended weakness of the sex is not probably the true
reason. Poth. Des Personnes, tit. 5; Wood's Inst. 12; Civ. Code of Louis.
art. 24; 1 Beck's Med. Juris. 94. Vide Gender; Male; Man; Women; Worthiest
of blood.
SHAM PLEA. One entered for the mere purpose of delay; it must be of a matter
which the pleader knows to be false; as judgment recovered, that is, that
judgment has already been recovered by the plaintiff for the same cause of
action.
2. These sham pleas are generally discouraged, and in some cases are
treated as a nullity. Barn. & Ald. 197, 199; 5 Id. 750; 1 Barn. & Cr. 286;
Archb. Civ. Pl. 249; 1 Chit. Pl. 401.
SHARE. A portion of anything. Sometimes shares are equal, at other times
they are unequal.
2. In companies and corporations the whole of the capital stock is
usually divided into equal proportions called shares. Shares in public
companies have sometimes been held to be real estate, but most usually they
are considered as personal property. Wordsw. Jo. Sto. Co. ch. 1 P, p. 288.
3. The proportion which descends to one of several children from his
ancestor, is called a share. The term share and share alike, signifies in
equal proportions. See Perpart.
SHEEP. A wether more than a year old. 4 Car. & Payne, 216; 19 Eng. Com. Law
Rep. 331, S. C.
SHELLEY'S CASE. This case, reported in 1 Rep. 93, contains a rule usually
known as the rule in Shelley's case, which has caused more commentaries
perhaps than any other case. It has been expressed with great precision,
though not with much elegance, to be "in any instrument, if a freehold be
limited to the ancestor for life, and the inheritance to his heirs, either
mediately or immediately, the first taker takes the whole estate; if it be
limited to the heirs of his body, he takes a fee tail; if to his heirs a fee
simple." Co. Litt. 376, b and Mr. Butler's note, 1; 3 Binn. R. 139 1 Day,
Rep. 299; 1 Prest. on Estates, ch. 3; 4 Kent, Com. 206; Cruise, Dig. tit.
32, c. 22; 2 Yeates, R. 410; 1 Hargr. Law Tracts, article "Observations
concerning the rule in Shelley's case, chiefly with a view to the
application of that rule in Last Wills;" 5 Ohio R. 465.
SHERIFF. The name of the chief officer of the county. In Latin he is called
vice comes, because in England he represented the comes or earl. His name is
said to be derived from the Saxon seyre, shire or county, and reve, keeper,
bailiff, or guardian.
2. The general duties of the sheriff are, 1st. To keep the peace within
the county; he may apprehend, and commit to prison all persons who break the
peace or attempt to break it, and bind any one in a recognizance to keep the
peace. He is required ex officio, to pursue and take all traitors,
murderers, felons and rioters. He has the keeping of the county gaol and he
is bound to defend it against all attacks. He may command the posse
comitatus. (q.v.)
3.-2d. In his ministerial capacity, the sheriff is bound to execute
within his county or bailiwick, all process issuing from the courts of the
commonwealth.
4.-3d. The sheriff also possesses a judicial capacity, but this is very
much circumscribed to what it was at common law in England. It is now
generally confined to ascertain damages on writs of inquiry and the like.
5. Generally speaking the sheriff has no authority out of his county. 2
Rolle's Rep. 163; Plowd, 37 a. He may, however, do mere ministerial acts out
of his county, as making a return. Dalt. Sh. 22. Vide, generally, the
various Digests and Abridgments, h.t.; Dalt. Sher.; Wats. Off. and Duty of
Sheriff; Wood's Inst. 75; 18 Eng. Com. Law Rep. 177; 2 Phil. Ev. 213; Chit.
Pr. Index, h.t.; Chit. Pr. Law, Index, h.t.
SHERIFFALTY. The office of sheriff, the time during which a sheriff is to
remain in office.
SHIFTING USE, estates. One which takes effect in derogation of some other
estate, and is either limited by the deed creating it, or authorized to be
created by some person named in it. This is sometimes called a secondary
use.
2. The following is an example: If an estate be limited to A and his
heirs, with a proviso that if B pay to A one hundred dollars by a time
named, the use to A shall ease, and the estate go to B in fee; the estate is
vested in A subject to the shifting or secondary use in fee in B. Again, if
the proviso be that C may revoke the use to A, and limit it to B, then A is
seised in fee, with a power in C of revocation and limitation of a new use.
These shifting uses must be confined within proper limits, so as not to
create a perpetuity. 4 Kent, Com. 291; Cornish on Uses, 91; Bac. Ab. Uses
and Trusts, K; Co. Litt. 327, a, note Worth on Wills, 419; 2 Bouv. Inst. n.
1890. Vide Use.
SHILLING, Eng. law. The name of an English coin, of the value of one
twentieth part of a pound. In the United States, while they were colonies,
there were coins of this denomination, but they greatly varied in their
value.
SHIP. This word, in its most enlarged sense, signifies a vessel employed in
navigation; for example, the terms the ship's papers, the ship's husband,
shipwreck, and the like, are employed whether the vessel referred to be a
brig, a sloop, or a three-masted vessel.
2. In a more confined sense, it means such a vessel with three masts 4
Wash. C. C. Rep. 530; Wesk. Inst. h.t. p. 514 the boats and rigging; 2
Marsh. Ins. 727 together with the anchors, masts, cables, pullies, and such
like objects, are considered as part of the ship. Pard. n. 599; Dig. 22, 2,
44.
3. The capacity of a ship is ascertained by its tonnage, or the space
which may be occupied by its cargo. Vide Story's Laws U. S. Index, h.t.;
Gordon's Dig. h.t.; Abbott on Ship. Index, h.t.; Park. Ins. Index, h.t.;
Phil. Ev. Index, h.t. Bac. Ab. Merchant, N; 3 Kent, Com. 93 Molloy, Jure
Mar. Index, h.t.; l Chit. Pr. 91; Whart. Dig. h.t.; 1 Bell's Com. 496, 624;
and see General Ships; Names of Ships.
SHIP BROKER. One who transacts business between the owners of vessels and
merchants who send cargoes.
SHIP DAMAGES. In the charter parties with the English East India Company,
these words occur; their meaning is damage from negligence, insufficiency or
bad stowage in the ship. Dougl. 272; Abbott, on Ship. 204.
SHIP'S HUSBAND, mar. law. An agent appointed by the owner of a ship, and
invested with authority to make the requisite repairs, and attend to the
management, equipment, and other concerns of the ship he is usually
authorized to act as the general agent of the owners, in relation to the
ship in her home port.
2. By virtue of his agency, he is authorized to direct all proper
repairs, equipments and outfits of the ship; to hire the officers and crew;
to enter into contracts for the freight or charter of the ship, if that is
her usual employment; and to do all other acts necessary and proper to
prepare and despatch her for and on her intended voyage. 1 Liverm. on Ag.
72, 73; Story on Ag. Sec. 35.
3. By some authors, it is said the ship's husband must be a part owner.
Hall on Mar. Loans, 142, n.; Abbott on Ship. part 1, c. 3, s. 2.
4. Mr. Bell, Comm. 410, Sec. 428, 5t ed. p. 503, points out the duties
of the ship's husband, as follows, namely: 1. To see to the proper outfit of
the vessel, in the repairs adequate to the voyage, and in the tackle and
furniture necessary for a sea-worthy ship.
5.-2. To have a proper master, mate, and crew, for the ship, so that,
in this respect, it shall be sea-worthy.
6.-3. To see the due furnishing of provisions and stores, according to
the necessities of the voyage.
7.-4. To see to the regularity of the clearance's from the custom-
house, and the regularity of the registry.
8.-5. To settle the contracts, and provide for the payment of the
furnishings which are requisite to the performance of those duties.
9.-6. To enter into proper charter parties, or engage the vessel for
general freight, under the usual conditions; and to settle for freight, and
adjust averages with the merchant; and,
10.-7. To preserve the proper certificates, surveys and documents, in
case of future disputes with insurers and freighters and to keep regular
books of the ship.
11. These are his general powers, but of course, they may be limited or
enlarged by the owners; and it may be observed, that without special
authority, he cannot, in general, exercise the following enumerated acts:
1. He cannot borrow money generally for the use of the ship; though, as
above observed, he may settle the accounts for furnishings, or grant bills
for them, which form debts against the concern, whether or not he has funds
in his hands with which he might have paid them. 1 Bell, Com. 411, 499.
12.-2. Although he may in general, levy the freight which is, by the
bill of lading, payable on the delivery of the goods, it would seem that he
would not have power to take bills for the freight, and give up the
possession of the lien over the cargo, unless it has been so settled by the
charter party. Id.
13.-3. He cannot insure, or bind the owners for premiums. Id.; 5 Burr.
2627; Paley on Ag. by Lloyd, 23, note 8; Abb. on Ship. part 1, c. 3, s. 2;
Marsh. Ins. b. 1, c. 8, s. 2; Liv. on Ag. 72, 73.
14. As the power of the master to enter into contracts of
affreightments, is superseded in the port of the owners, so it is by the
presence of the ship's husband, or the knowledge of the contracting parties
that a ship's husband has been appointed. Bell's Com. ut supra.
SHIP'S PAPERS. Those documents which are required on board of neutral ships,
as evidence of their neutrality, These are the passports, sea-letter,
muster-roll, charter party, bill of lading, invoices, log book, bill of
health, register, and papers containing proofs of property. 1 Chit. Com. Law
487.
2. The want of these papers, or either of them, renders the character
of a vessel suspicious. Vide Clearance, and 2 Boulay Paty, Dr. Com. 14.
SHIPPER. One who ships or puts goods on board of a vessel, to be carried to
another place during her voyage. In general, the shipper is bound to pay for
the hire of the vessel, or the freight of the goods. 1 Bouv. Inst. n. 1030.
SHIPPING ARTICLES, contr. mar. law. The act of congress of July 20, 1790, s.
1, directs that a master of any vessel bound from a port in the United
States to any foreign port, or of any vessel of fifty tons or upwards, bound
from a port in one state to a port in any other than at adjoining state,
shall, before he proceed on such voyage, make an agreement in writing or in
print, with every seaman or mariner on board such vessel, (except such as
shall be apprenticed or servant to himself or owners) declaring the voyage
or voyages, term or terms of time, for which such seaman or mariner shall be
shipped.
2. And by sect. 2, it is required that at the foot of every such
contract, there shall be a memorandum in writing, of the day and the hour on
which such seaman or mariner who shall so ship and subscribe, shall render
himself on board to begin the voyage agreed upon.
3. This instrument is called the shipping articles. For want of which,
the seaman is entitled to the highest wages which have been given at the
port or place where such seaman or mariner shall have been shipped for a
similar voyage within three months next before the time of such shipping, on
his performing the service, or during the time he shall continue to do duty
on board such vessel, without being bound by the regulations, nor subject to
the penalties and forfeitures contained in the said act of congress; and the
master is further liable to a penalty of twenty dollars.
4. The shipping articles ought not to contain any clause which
derogates from the general rights and privileges of seamen, and if they do,
such clause will be declared void. 2 Sumner, 443; 2 Mason, 541.
5. A seaman who signs shipping articles, is bound to perform the
voyage, and he has no right to elect to pay damages for non-performance of
the contract. 2 Virg. Cas. 276.
Vide, generally, Gilp. 147, 219, 452; 1 Pet. Ad. Dec. 212; Bee, 48; 1
Mason, 443; 5 Mason, 272; 14 John. 260.
SHIPWRECK. The loss of a vessel at sea, either. by being swallowed up by the
waves, by running against another vessel or thing at sea, or on the coast.
Vide Naufrage; Wreck.
SHIRE, Eng. law. A district or division of country. Co. Lit. 50 a.
SHOP BOOK. This name is given to a book in which a merchant, mechanic, or
other person, makes original entries of goods sold or work done.
2. In general, such a book is prima facie evidence of the sale of the
goods and of the work done, but not of their value. Vide Original entry.
SHORE. Land on the side of the sea, a lake, or a river, is called the shore.
Strictly speaking, however, when the water does not ebb and flow, in a
river, there is no shore. See 4 Hill, N. Y. Rep. 375; 6 Cowen, 547; and
Seashore.
SHORT ENTRY. A term used among bankers, which takes, place when a note has
been sent to a bank for collection, and an entry of it is made in the
customer's bank book, stating the amount in an inner column, and carrying it
out into the accounts between the parties when it has been paid.
2. A bill of this kind remains the property of the depositor. 1 Bell's
Com. 27l; 9 East, 12; 1 Rose, 153; 2 Rose, 163; 2 B. & Cr. 422; Pull. Mer.
Acc. 56.
SI FACERIT TE SECUREM. If he make you secure. These words occur in the form
of writs, which originally requited, or still require, that the plaintiff
should give security to the sheriff that he will prosecute his claim, before
the sheriff can be required to execute such writ.
SICKNESS. By sickness is understood any affection of the body which deprives
it temporarily of the power to fulfill its usual functions.
2. Sickness is either such as affects the body generally, or only some
parts of it. Of the former class, a fever is an example; of the latter,
blindness. When a process has been issued against an individual for his
arrest, the sheriff or other officer is authorized, after he has arrested
him, if he be so dangerously sick, that to remove him would endanger his
life or health, to let him remain where he found him, and to return the
facts at large, or simply languidus. (q.v.)
SIDE BAR RULES, Eng practice. Rules which were formerly moved for by
attorneys on the side bar of the court; but now may be had of the clerk of
the rules, upon a praecipe. These rules are, that the sheriff return his
writ; that he bring in the body; for special imparlance; to be present at
the taxing of costs, and the like.
SIENS. An obsolete word, formerly used for scion, which figuratively
signified a person who descended from another. "The sien," says Lord Coke,
"takes all his nourishment from the stocke, and yet it produceth his own
fruit." Co. Lit. 123 a. Vide Branch.
SIGILLUM. A seal. (q.v.) Vide Scroll.
SIGHT, contracts. Bills of exchange are frequently made payable at sight,
that is, on presentment, which might be taken naturally to mean that the
bill should then be paid without further delay; but although the point be
not clearly settled, it seems the drawee is entitled to the days of grace.
Beaw. Lex Mer. pl. 256; Kyd on Bills, 10; Chit. on Bills, 343-4; Bayley on
Bills, 42, 109, 110; Selw. N. P. 339.
2.-The holder of a bill payable at sight, is required to use due
diligence to put it into circulation, or have it presented for acceptance
within a reasonable time. 20 John. 146; 7 Cowen, 705; 12 Pick. 399 13 Mass.
137; 4 Mason, 336; 5 Mason's 118; 1 McCord, 322; 1 Hawks, 195.
3. When the bill is payable any number of days after sight, the time
begins to run from the period of presentment and acceptance, and not from
the time of mere presentment. 1 Mason, 176; 20 John. 176.
SIGN, contracts, evidence. A token of anything; a note or token given
without words.
2. Contracts are express or implied. The express are manifested viva
voce, or by writing; the implied are shown by silence, by acts, or by signs.
3. Among all nations find and at all times, certain signs have been
considered as proof of assent or dissent; for example, the nodding of the
head, and the shaking of hands; 2 Bl. Com. 448; 6 Toull. D. 33; Heinnec.,
Antiq. lib. 3, t. 23, n. 19; silence and inaction, facts and signs are
sometimes very strong evidence of cool reflection, when following a
question. I ask you to lend me one hundred dollars, without saying a word
you put your hand in your pocket, and deliver me the money. I go into a
hotel and I ask the landlord if he can accommodate me and take care of my
trunk; without speaking he takes it out of my hands and sends it into his
chamber. By this act he doubtless becomes responsible to me as a bailee. At
the expiration of a lease, the tenant remains in possession, without any
objection from the landlord; this may be fairly interpreted as a sign of a
consent that the lease shall be renewed. 13 Serg. & Rawle, 60.
4, The learned author of the Decline and Fall of the Roman Empire, in
his 44th chapter, remarks, "Among savage nations, the want of letters is
imperfectly supplied by the use of visible signs, which awaken attention,
and perpetuate the remembrance of any public or private transaction. The
jurisprudence of the first Romans exhibited the scenes of a pantomime; the
words were adapted to the gestures, and the slightest error or neglect in
the forms of proceeding was sufficient to annul the substance of the fairest
claim. The communion of the marriage-life was denoted by the necessary
elements of fire and water: and the divorced wife resigned, the bunch of
keys, by the delivery of which she had been invested with the government of
the family. The manumission of a son, or a slave, was performed by turning
him round with a gentle blow on the cheek: a work was prohibited by the
casting of a stone; prescription was interrupted by the breaking of a
branch; the clenched fist was the symbol of a pledge or deposits; the right
hand was the gift of faith and confidence. The indenture of covenants was a
broken straw; weights and, scales were introduced into every payment, and
the heir who accepted a testament, was sometimes obliged to snap his
fingers, to cast away his garments, and to leap and dance with real or
affected transport. If a citizen pursued any stolen goods into a neighbor's
house, he concealed his nakedness with a linen towel, and hid his. face with
a mask or basin, lest he should encounter the eyes of a virgin or a matron.
In a civil action, the plaintiff touched the ear of his witness seized his
reluctant adversary by the neck and implored, in solemn lamentation, the aid
of his fellow citizens. The two competitors grasped each other's hand, as if
they stood prepared for combat before the tribunal of the praetor: he
commanded them to produce the object of the dispute; they went, they
returned with measured steps, and a clod of earth was cast at his feet to
represent the field for which they contended. This occult science of the
words and actions of law, was the inheritance of the pontiffs and
patricians. Like the Chaldean astrologers, they announced to their clients
the days of business and repose; these important trifles wore interwoven
with the religion of Numa; and, after the publication of the Twelve Tables,
the Roman people were still enslaved by the ignorance of judicial
proceedings. The treachery of some plebeian officers at length revealed the
profitable mystery: in a more enlightened age, the legal actions were
derided and observed; and the same antiquity which sanctified the practice,
obliterated the use and meaning, of this primitive language."
SIGN, measures. In angular measures, a sign is equal to thirty degrees. Vide
Measure.
SIGN, mer. law. A board, tin or other substance, on which is painted the
name and business of a merchant or tradesman.
2. Every man has a right to adopt such a sign as he may please to
select, but he has no right to use another's name, without his consent. See
Dall. Dict. mot Propriete Industrielle, and the article Trade marks.
To SIGN. To write one's name to an instrument of writing in order to give
the effect intended; the name thus written is called a signature.
2. The signature is usually made at the bottom of the instrument but in
wills it has been held that when a testator commenced his will With these
words;, "I, A B, make this my will," it was a sufficient signing. 3 Lev. 1;
and vide Rob. on Wills, 122 1 Will. on Wills, 49, 50; Chit. Cont. 212 Newl.
Contr. 173; Sugd. Vend. 71; 2 Stark. Ev. 605, 613; Rob. on Fr. 121; but this
decision is said to be absurd. 1 Bro. Civ. Law, 278, n. 16. Vide Merl.
Repert. mot Signature, for a history of the origin, of signatures; and also
4 Cruise, Dig. h.t. 32, c. 2, s. 73, et seq.; see, generally, 8 Toull. n.
94-96; 1 Dall. 64; 5 Whart. R. 386; 2 B. & P 238; 2 M. & S. 286.
3. To sign a judgment, is to enter a judgment for want of something
which was required to be done; as, for example, in the English practice, if
he who is bound to give oyer does not give it within the time required, in
such cases, the adverse party may sign judgment against him. 2 T. R. 40;
Com. Dig. Pleader, P 1; Barnes, 245.
SIGNA, civil law. Those species of indicia (q.v.) which come more
immediately under the cognizance of the senses, such as stains of blood on
the person of one accused of murder, indications of terror at being charged
with the offence, and the like.
2. Signa, although not to be rejected as instruments of evidence,
cannot always be relied upon as conclusive evidence, for they are frequently
explained away; in the instance mentioned the blood may have been that of a
beast, and expressions of terror have been frequently manifested by innocent
persons who did not possess much firmness. See Best on Pres. 13, n. f.;
Denisart, h.v.
SIGNATURE, eccl. law. The name of a sort of rescript, without seal,
containing the supplication, the signature of the pope or his delegate, and
the grant of a pardon Dict. Dr. Can. h.v.
SIGNATURE, pract. contr. By signature is understood the act of putting down
a man's name, at the end of an instrument, to attest its validity. The name
thus written is also called a signature.
2. It is not necessary that a party should write his name himself, to
constitute a signature; his mark is now held sufficient though he was able
to write. 8 Ad. & El. 94; 3 N. & Per. 228; 3 Curt. 752; 5 John. 144, A
signature made by a party, another person guiding his band with his consent,
is sufficient. 4 Wash. C. C. 262, 269. Vide to Sign.
SIGNIFICATION, French law. The notice given of a decree, sentence or other
judicial act.
SIGNIFICAVIT, eccl. law. When this word is used alone, it means the bishop's
certificate to the court of chancery, in order to obtain the writ of
excommunication; but where the words writ of significavit are used, the
meaning is the same as writ de excommunicato capiendo. 2 Burn's Eccl. L.
248; Shelf. on Mar. & Div. 502.
SILENCE. The state of a person who does not speak, or of one who refrains
from speaking.
2. Pure and simple silence cannot be considered as a consent to a
contract, except in cases when the silent person is bound in good faith to
explain himself, in which case, silence gives consent. 6 Toull. liv. 3, t.
3, n. 32, note; 14 Serg. & Rawle, 393; 2 Supp. to Ves. jr. 442; 1 Dane's Ab.
c. 1, art. 4, Sec. 3; 8 T. R. 483; 6 Penn. St. R. 336; 1 Greenl. Ev. 201; 2
Bouv. Inst. n. 1313. But no assent will be inferred from a man's silence,
unless, 1st. He knows his rights and knows what he is doing and, 2d. His
silence is voluntary.
3. When any person is accused of a crime, or charged with any fact, and
he does not deny it, in general, the presumption is very strong that the
charge is correct. 7 C. & P. 832 5 C. & P. 332; Joy on Conf. s. 10, p. 77.
4. The rule does not extend to the silence of a prisoner, when on his
examination before a magistrate he is charged by another prisoner with
having joined him in the commission of an offence: 3 Stark. C. 33.
5. When an oath is administered to a witness, instead of expressly
promising to keep it, he gives his assent by his silence, and kissing the
book.
6. The person to be affected by the silence must be one not
disqualified to act as non compos, an infant, or the like, for even the
express promise of such a person would not bind him to the performance of
any contract.
7. The rule of the civil law is that silence is not an acknowledgment
or denial in every case, qui tacet, non utique fatetur: sed tamen verum est,
eum non negaro. Dig. 50, 17, 142.
SILVA CAEDUA. By these words in England is understood every sort of wood,
except gross wood of the age of twenty years. Bac. Ab. Tythes, C.
SIMILITER, pleading. When the defendant's plea contains a direct
contradiction of the declaration, and concludes with referring the matter to
be tried by a jury of the country, the plaintiff must do so too; that is, he
must also submit the matter to be tried by a jury, without offering any new
answer to it, and must stand or fall by his declaration. Co. Litt. 126 a. In
such case, he merely replies that as the defendant has put himself upon the
country, that is, has submitted his cause to be tried by a jury of the
country, he, the plaintiff, does so likewise, or the like. Hence this sort
of replication is called a similiter, that having been the effective word
when the proceedings were in Latin. 1 Chit. Pl. 549; Arch. Civ. Pl. 250. See
Steph. Pl. 255; 2 Saund. 319, b; Cowp. 407; 1 Str. Rep. 551; 11 S. & R. 32.
SIMONY, eccl. law. The selling and buying of holy orders, or an
ecclesiastical benefice. Bac. Ab. h.t.; 1 Harr. Dig. 556. By simony is also
understood an unlawful agreement to receive a temporal reward for something
holy or spiritual. Code, 1, 3, 31 Ayl. Parerg. 496.
SIMPLE. Not compounded, alone; as, simple interest, which is interest on the
principal sum lent only and not interest on the interest; simple contract,
&c.
SIMPLE CONTRACT. One, the evidence of which is merely oral, or in writing,
not under seal, nor of record. 1 Chit. Contr. 1 1 Chit. Pl. 88; and vide 11
Mass. R. 30 11 East, R. 312; 4 Barn. & Ald. 588; Stark. Ev. 995; 2 Bl. Com.
472.
2. As contracts of this nature are frequently entered into without
thought or proper deliberation, the law requires that there be some good
cause, consideration or motive, before they can be enforced in the courts.
The party making the promise must have obtained some advantage, or the party
to whom it is made must have sustained some injury or inconvenience in
consequence of such promise; this rule has been established for the purpose
of protecting weak and thoughtless persons from the consequences of rash,
improvident, and inconsiderate engagements. See Nudum pactum. But it must be
recollected this rule does not apply to promissory notes, bills of exchange
or commercial papers. 3 M. & S. 352.
SIMPLE LARCENY. The felonious taking and carrying away the personal goods of
another, unattended by acts of violence; it is distinguished from compound
larceny, which is the stealing from the person or with violence.
SIMPLE OBLIGATION. An unconditional obligation, one which is to be performed
without depending upon any event provided by the parties to it.
SIMPLE TRUST. A simple trust corresponds with the ancient use, and is where
property is simply vested in one person for the use of another, and the
nature of the trust, not being qualified by the settler, is left to the
construction of law. It differs from a special trust. (q.v.) 2 Bouv. Inst.
n. 1896.
SIMPLEX. Simple or single; as, charta simplex, is a deed-poll, of single
deed. Jacob's L. Dict. h.t.
SIMPLICITER. Simply, without ceremony; in a summary manner.
SIMUL CUM, pleading. Together with. These words are used in indictments and
declarations of trespass against several persons, when some of them are
known and others are unknown.
2. In cases of riots it is usual to charge that A B, together with
others unknown, did the act complained of. 2 Chit. Cr. Law, 488; 2 Salk. R.
593.
3. When a party sued with another pleads separately, the plea is
generally entitled in the name of the person pleading, adding "sued
with___," naming the other party. When this occurred, it was, in the old
phraseology, called pleading with a simul cum.
SIMULATION, French law. This word is derived from the Latin simul, together.
It indicates, agreeably to its etymology, the concert or agreement of two or
more persons to give to one thing the appearance of another, for the purpose
of fraud. Merl. Repert. h.t.
2. With us such act might be punished by indictment for a conspiracy;
by avoiding the pretended contract; or by action to recover back the money
or property which may have been thus fraudulently obtained.
SINE DIE. Without day. A judgment for a defendant in many cases is quod eat
sine die, that he may go without day. While the cause is pending and
undetermined, it may be continued from term to term by dies datus. (q.v.)
See Huxley's Judgments & Rastal's Entries, passim; Co. Litt. 362b & 363a.
When the court or other body rise at the end of a session or term they
adjourn sine die.
SINECURE. In the ecclesiastical law, this term is used to signify that an
ecclesiastical officer is without a charge or cure.
2. In common parlance it means the receipt of a salary for an office
when there are no duties to be performed.
SINGLE. By itself, unconnected.
2. A single bill is one without any condition, and does not depend upon
any future event to give it validity. Single is also applied to an unmarried
person; as, A B, single woman. Vide Simplex.
SINGLE ENTRY. A term used among merchants signifying that the entry is made
to charge or to credit an individual or thing, without, at the same time,
presenting any other part of the operation; it is used in contradistinction
to double entry. (q.v.) For example, a single entry is made, A B debtor, or
A B creditor, without designating what are the connexions between the entry
and the objects which composed the fortune of the merchant.
SINGULAR, construction. In grammar the singular is used to express only one,
not plural. Johnson.
2. In law, the singular frequently includes the plural. A bequest to
"my nearest relation," for example, will be considered as a bequest to all
the relations in the same degree, who are nearest to the testator. 1 Ves.
sen. 337; 1 Bro. C. C. 293. A bequest made to "my heir," by a person who had
three heirs, will be construed in the plural. 4 Russ. C. C. 384.
3. The same rule obtains in the civil law: In usu juris frequenter uti
nos singulari appellationie, am plura significari vellemus. Dig. 50, l6,
158.
SINKING FUND. A fund arising from particular taxes, imposts, or duties,
which is appropriated towards the payment of the interest due on a public
loan and for the gradual payment of the principal. See Funding System.
SIRE. A title of honor given to kings or emperors in speaking or writing to
them.
SISTER. A woman who has the same father and mother with another, or has one
of them only. In the first case she is called sister, simply; in the second,
half sister. Vide Brother; Children; Descent; Father; Mother.
SITUS. Situation;, location. 5 Pet. R. 524.
2. Real estate has always a fixed situs, while personal estate has no
such fixed situs; the law rei site regulates real but not the personal
estate. Story, Confl. of Laws, Sec. 379.
SKELETON BILL, com. law. A blank paper, properly stamped, in those countries
where stamps are required, with the name of a person signed at the bottom.
2. In such case the person signing the paper will be held as the drawer
or acceptor, as it may be, of any bill which shall afterwards be written
above his name to the sum of which the stamp is applicable. 1 Bell's Com.
390, 5th ed.
SKILL, contracts. The art of doing a thing as it ought to be done.
2. Every person who purports to have skill in la business, and
undertakes for hire to perform it, is bound to do it with ordinary skill,
and is responsible civilly in damages for the want of it; 11 M. & W. 483;
and sometimes he is responsible criminally. Vide Mala Praxis; 2 Russ. on Cr.
288,
3. The degree of skill and diligence required, rises in proportion to
the value of the article, and the delicacy of the operation: more skill is
required, for example, to repair a very delicate mathematical instrument,
than upon a common instrument. Jones' Bailm. 91; 2 Kent, Com. 458, 463; 1
Bell's Com. 459; 2 Ld. Raym. 909, 918; Domat, liv. 1, t. 4, Sec. 8, n. 1;
Poth. Louage, n. 425; Pardess. n. 528; Ayl. Pand. B. 4, t. 7, p. 466; Ersk.
Inst. B. 3, t. 3, Sec. 16; 1 Rolle, Ab. 10; Story's Bailm. Sec. 431, et
seq.; 2 Greenl. Ev. Sec. 144.
SLANDER, torts. The defaming a man in his reputation by speaking or writing
words which affect his life, office, or trade, or which tend to his loss of
preferment in marriage or service, or in his inheritance, or which occasion
any other particular damage. Law of Nisi Prius, 3. In England, if slander be
spoken of a peer, or other great man, it is called Scandalum Magnatum.
Falsity and malice are ingredients of slander. Bac. Abr. Slander. Written or
printed slanders are libels; see that word.
2. Here it is proposed to treat of verbal slander only, which may be
considered with reference to, 1st. The nature of the accusation. 2d. The
falsity of the charge. 3d. The mode of publication. 4th. The occasion; and
5th. The malice or motive of the slander.
3.-Sec. 1. Actionable words are of two descriptions; first, those
actionable in themselves, without proof of special damages and, secondly,
those actionable only in respect of some actual consequential damages.
4.-1. Words of the first description must impute: 1st. The guilt of
some offence for which the party, if guilty, might be indicted and punished
by the criminal courts; as to call a person a "traitor," "thief,"
"highwayman;" or to say that he is guilty of "perjury," "forgery," "murder,"
and the like. And although the imputation of guilt be general, without
stating the particulars of the pretended crime, it is actionable. Cro. Jac.
114, 142; 6 T. R. 674; 3 Wils. 186; 2 Vent. 266; 2 New Rep. 335. See 3 Serg.
& Rawle, 255 7 Serg. & Rawle, 451; 1 Binn. 452; 5 Binn. 218; 3 Serg. &
Rawle, 261; 2 Binn. 34; 4 Yeates, 423; 10 Serg. & Rawle, 44; Stark. on
Slander, 13 to 42; 8 Mass. 248; 13 Johns. 124; Id. 275.
5.-2d. That the party has a disease or distemper which renders him
unfit for society. Bac. Abr. Slander, B 2. An action can therefore be
sustained for calling a man a leper. Cro. Jac. 144 Stark. on Slander, 97.
But charging another with having had a contagious disease is not actionable,
as he will not, on that account, be excluded from society. 2 T. R. 473, 4; 2
Str. 1189; Bac. Abr. tit. Slander, B 2. A charge which renders a man
ridiculous, and impairs the enjoyment of general society, and injures those
imperfect rights of friendly intercourse and mutual benevolence which man
has with respect to man, is also actionable. Holt on Libels, 221.
6.-3d. Unfitness in an officer, who holds an office to which profit or
emolument is attached, either in respect of morals or inability to discharge
the duties of the office in such a case an action lies. 1 Salk. 695, 698;
Rolle, Ab. 65; 2 Esp. R. 500; 5 Co. 125; 4 Co. 16 a; 1 Str. 617; 2 Ld. Raym.
1369; Bull. N. P. 4; Holt on Libels, 207; Stark. on Slander, 100.
7.-4th. The want of integrity or capacity, whether mental or pecuniary,
in the conduct of a profession, trade or business, in which the party is
engaged, is actionable, 1 Mal. Entr. 244 as to accuse an attorney or artist
of inability, inattention, or want of integrity; 3 Wils. 187; 2 Bl. Rep.
750; or a clergyman of being a drunkard; 1 Binn. 178; is actionable. See
Holt on Libels, 210; Id. 217.
8.-2. Of the second class are words which are actionable only in
respect of special damages sustained by the party slandered. Though the law
will not permit in these cases the inference of damage, yet when the damage
has actually been sustained, the party aggrieved may support an action for
the publication of an untruth; 1 Lev. 53; 1 Sid. 79, 80; 3 Wood. 210; 2
Leon. 111; unless the assertion be made for the assertion of a supposed
claim; Com. Dig. tit. Action upon the case for Defamation, D 30; Bac. Ab.
Slander, B; but it lies if maliciously spoken. See 1 Rolle, Ab. 36 1 Saund.
243 Bac. Abr. Slander, C; 8 T. R. 130 8 East, R. 1; Stark. on Slander, 157.
9.-Sec. 2. The charge must be false; 5 Co. 125, 6; Hob. 253; the
falsity of the accusation is to be implied till the contrary is shown. 2
East, R. 436; 1 Saund. 242. The instance of a master making an unfavorable
representation of his servant, upon an application for his character, seems
to be an exception, in that case there being a presumption from the occasion
of the speaking, that the words were true. 1 T. R. 111; 3 B. & P. 587;
Stark. on Slander, 44, 175, 223.
10.-Sec. 3. The slander must, of course, be published, that is,
communicated to a third person; and if verbal, then in a language which he
understands, otherwise the plaintiff's reputation is not impaired. 1 Rolle,
Ab. 74; Cro. Eliz. 857; 1 Saund. 2425 n. 3; Bac. Abr. Slander, D 3. A letter
addressed to the party, containing libelous matter, is not sufficient to
maintain a civil action, though it may subject the libeler to an indictment,
as tending to a breach of the peace; 2 Bl. R. 1038; 1 T. R. 110; 1 Saund.
l32, n. 2; 4 Esp. N. P. R. 117; 2 Esp. N. P. R. 623; 2 East, R. 361; the
slander must be published respecting the plaintiff; a mother cannot maintain
an action for calling her daughter a bastard. 11 Serg. & Rawle, 343. As to
the case of a man who repeats the slander invented by another, see Stark. on
Slander, 213; 2 P. A. Bro. R. 89; 3 Yeates, 508; 3 Binn. 546.
11.-Sec. 4. To render words actionable, they must be uttered without
legal occasion. On some occasions it is justifiable to utter slander of
another, in others it is excusable, provided it be uttered without express
malice. Bac. Ab. Slander, D 4; Rolle, Ab. 87; 1 Vin. Ab. 540. It is
justifiable for au attorney to use scandalizing expressions in support of
his client's cause and pertinent thereto. 1 M. & S. 280; 1 Holt's R. 531; 1
B. & A. 232; see 2 Serg. & Rawle, 469; 1 Binn. 178; 4 Yeates, 322; 1 P. A.
Browne's R. 40; 11 Verm. R. 536; Stark. on Slander, 182. Members of congress
and other legislative assemblies cannot be called to account for anything
said in debate.
12.-Sec. 5. Malice is essential to the support of an action for
slanderous words. But malice is in general to be presumed until the contrary
be proved; 4 B. & C. 247; 1 Saund. 242, n. 2; 1 T. R. 1 11, 544; 1 East, R.
563; 2 East, R. 436; 2 New Rep. 335; Bull. N. P. 8; except in those cases
where the occasion prima facie excuses the publication. 4 B. & C. 247. See
14 Serg. & Rawle, 359; Stark. on Slander, 201. See, generally, Com. Dig.
tit. Action upon the case for Defamation; Bac. Abr. Slander; 1 Vin. Abr.
187; 1 Phillim. Ev. ch. 8; Yelv. 28, n.; Doctr. Plac. 53 Holt's Law of
Libels; Starkie on Slander, Ham. N. P. ch. 2, s. 3.
SLANDERER. A calumniator, who maliciously and without reason imputes a crime
or fault to another, of which he is innocent.
2. For this offence, when the slander is merely verbal, the remedy is
an action on the case for damages; when it is reduced to writing or
printing, it is a libel. (q.v.)
SLAVE. A man who is by law deprived of his liberty for life, and becomes the
property of another.
2. A slave has no political rights, and generally has no civil rights.
He can enter into no contract unless specially authorized by law; what he
acquires generally, belongs to his master. The children of female slaves
follow the condition of their mothers, and are themselves slaves.
3. In Maryland, Missouri and Virginia slaves are declared by statute to
be personal estate, or treated as such. Anth. Shep. To. 428, 494; Misso.
Laws, 558. In Kentucky, the rule is different, and they are considered real
estate. 1 Kty. Rev. Laws, 566 1 Dana's R. 94.
4. In general a slave is considered a thing and not a person; but
sometimes he is considered as a person; as when he commits a crime; for
example, two white persons and a slave can commit a riot. 1 McCord, 534. See
Person.
5. A slave may acquire his freedom in various ways: 1. By manumission,
by deed or writing, which must be made according to the laws of the state
where the master then acts. 1 Penn. 10; 1 Rand. 15. The deed may be absolute
which gives immediate freedom to the slave, or conditional giving him
immediate freedom, and reserving a right of service for a time to come; 6
Rand. 652; or giving him his freedom as soon as a certain condition shall
have been fulfilled. 2 Root, 364; Coxe, 4. 2. By manumission by will. When
there is an express emancipation by will, the slave will be free, and the
testator's real estate shall be charged with the payment of his debts, if
there be not enough personal property without the sale of the slaves. 9 Pet.
461. See Harper, R. 20. The manumission by will may be implied, as, where
the master devises property real or personal to his slave. 2 Pet; 670; 5
Har. & J. 190. 3. By the removal of the slave with the consent of the
master, animo morandi, into one of the United States where slavery is
forbidden by law; 2 Mart. Lo. Rep. N. J. 401; or when he sojourns there
longer than is allowed by the law of the state. 7 S. & R. 378; 1 Wash. C. C.
Rep. 499. Vide Stroud on Slavery; Bouv. Inst. Index, h.t.; and as to the
rights of one who, being free, is held as a slave, 2 Gilman, 1; 3 Yeates,
240.
SLAVE TRADE, criminal law. The infamous traffic in human flesh, which though
not prohibited by the law of nations, is now forbidden by the laws and
treaties of most civilized states.
2. By the constitution of the United States, art. 1, s. 9, it is
provided, that the "migration or importation of such persons as any of the
states now existing (in 1789,) shall think proper to admit, shall not be
prohibited by the congress, prior to the year one thousand eight hundred and
eight." Previously to that date several laws were enacted, which it is not
within the plan of this work to cite at large or to analyze; they are here
referred to, namely; act of 1794, c. 11, 1 Story's laws U. S. 319; act of
1800, c. 51, 1 Story's Laws U. S. 780 act of 1803, c. 63, 2 Story's Laws U.
S 886; act of 1807, c. 77, 2 Story's Laws U. S. 1050; these several acts
forbid citizens of the United States, under certain circumstances, to equip
or build vessels for the purpose of carrying on the slave trade, and the
last mentioned act makes it highly penal to import slaves into the United
States after the first day of January, 1808. The act of 1818, c. 86, 3
Story's Laws U. S. 1698 the act of 1819, c. 224, 3 Story's Laws U. S. 1752;
and the act of 1820, c. 113, 3 Story's Laws U. S. 1798, contain further
prohibition of the slave trade, and punish tho violation of their several
provisions with the highest penalties of the law. Vide, generally, 10 Wheat.
R. 66; 2 Mason, R. 409; 1 Acton, 240; 1 Dodson, 81, 91, 95; 2 Dodson, 238; 6
Mass. R. 358; 2 Cranch, 336; 3 Dall. R. 297; 1 Wash. C. C. Rep. 522; 4 Id.
91; 3 Mason, R. 175; 9 Wheat. R. 391; 6 Cranch, 330; 5 Wheat. R. 338; 8 Id.
380; 10 Id. 312; 1 Kent, Com. 191.
SLAVERY. The state or condition of a slave.
2. Slavery exists in most of the southern states. In Pennsylvania, by
the act of March, 1780, for the gradual abolition of slavery, it has been
almost entirely removed in Massachusetts it was held, soon after the
Revolution, that slavery had been abolished by their constitution; 4 Mass.
128; in Connecticut, slavery has been totally extinguished by legislative
provisions; Reeve's Dom. Bel. 340; the states north of Delaware, Maryland
and the river Ohio, may be considered as free States, where slavery is not
tolerated. Vide Stroud on Slavery; 2 Kent, Com. 201; Rutherf. Inst. 238.
SMUGGLING. The fraudulent taking into a country, or out of it, merchandise
which is lawfully prohibited. Bac. Ab. h.t.
SO HELP YOU GOD. The formula at the end of a common oath, as administered to
a witness who testifies in chief.
SOCAGE, Eng. law. A tenure of lands by certain inferior services in
husbandry, and not knight's service, in lieu of all other services. Litt.
sect. 117.
SOCER. The father of one's wife; a father-in-law.
SOCIDA, civ. law. This is the name of a contract by which one man delivers
to another, either for a small recompense, or for a part of the profits,
certain animals, on condition that if any of them perish they shall be
replaced by the bailer, or he shall pay their value.
2. This is a contract of hiring, with this condition, that the bailee
takes upon him the risk of the loss of the thing hired. Wolff, Sec. 638.
SOCIETAS LEONINA. Among the Roman lawyers this term signified that kind of
society or partnership by which the entire profits should belong to some of
the partners in exclusion of the rest.
2. It was so called in allusion to the fable of the lion and other
animals, who having entered into partnership for the purpose of hunting, the
lion appropriated all the prey to himself. Dig. 17, 2, 29, 2; Poth. Traite
de Societe, n. 12. See 2 McCord's R. 421; 6 Pick. 372.
SOCIETE EN COMMENDITE. This term is borrowed from the laws of France, and is
used in Louisiana; the societe en commendite, or partnership in commendam,
is formed by a contract, by which one person or partnership agrees to
furnish another person or partnership a certain amount, either in property
or money, to be employed by the person or partnership to whom it is
furnished, in his or their own name or firm, on condition of receiving a
share in the profits, in the proportion determined by the contract, and of
being liable to losses and expenses to the amount furnished and no more.
Civ. Code of Lo. art. 2810; Code de Comm. 26, 33; 4 Pard. Dr. Com. n. 1027;
Dall. Dict. mots Societe Commerciale, n. 166. Vide Commendam; Partnership.
SOCIETY. A society is a number of persons united together by mutual consent,
in order to deliberate, determine, and act jointly for some common purpose.
2. Societies are either incorporated and known to the law, or
unincorporated, of which the law does not generally take notice.
3. By civil society is usually understood a state, (q.v.) a nation,
(q.v.) or a body politic. (q.v.) Rutherf. Inst. c. 1 and 2.
4. In the civil law, by society is meant a partnership. Inst. 3, 26;
Dig. 17, 2 Code, 4, 37.
SODOMITE. One who his been guilty of sodomy. Formerly such offender was
punished with great severity, and was deprived of the power of making a
will.
SODOMY, crim. law. The crime against nature, committed either with man or
beast.
2. It is a crime not it to be named; peccatum illud horrible, inter
christianos non nominandum. 4 Bl. Com. 215; 1 East, P. C. 480, 487; Bac. Ab.
h.t.; Hawk. b. 1, c. 4; 1 Hale, 669; Com. Dig. Justices, S 4; Russ. & Ry.
331.
3. This crime was punished with great severity by the civil law. Nov.
141; Nov. 77; Inst. 4, 18, 4. See 1 Russ. on Cr. 568; R. & R. C. C. 331,
412; 1 East, P. C. 437.
SOIL. The superficies of the earth on which buildings are erected, or may be
erected.
2. The soil is the principal, and the building, when erected, is the
accessory. Vide Dig. 6, 1, 49.
SOIT DROIT FAIT AL PARTIE, Eng. law. Let right be done to the party. This
phrase is written on a petition of right, and subscribed by the king. See
Petition of right.
SOKEMANS, Eng. law. Those who hold their land in socage. 2 Bl. Com. 100.
SOLARES, Spanish law. Lots of ground. This term is frequently found in
grants from the Spanish government of lands in America. 2 White's Coll. 474.
SOLD NOTE, contracts. The name of an instrument in writing, given by a
broker to a buyer of merchandise, in which it is stated that the goods
therein mentioned have been sold to him. 1 Bell's Com. 5th ed. 435 Story on
Ag. Sec. 28. Some confusion may be found in the books as to the name of
these notes; they are sometimes called bought notes. (q.v.)
SOLDIER. A military man; a private in the army.
2. The constitution of the United States, amend. art. 3, directs that
no soldier shall, in time of peace, be quartered in any house, without the
'consent of the owner; nor in time of war, but in a manner to be prescribed
by law.
SOLE. Alone, single; used in contradistinction to joint or married. A sole
tenant, therefore, is one who holds lands in his own right, without being
joined with any other. A feme sole is a single woman; a sole corporation is
one composed of only one natural person.
SOLEMNITY. The formality established by law to render a contract, agreement,
or other act valid.
2. A marriage, for example, would not be valid if made in jest, and
without solemnity. Vide Marriage, and Dig. 4, 1, 7; Id. 45, 1, 30.
SOLICITATION OF CHASTITY. The asking a person to commit adultery or
fornication.
2. This of itself, is not an indictable offence. Salk. 382; 2 Chit. Pr.
478. The contrary doctrine, however, has been held in Connecticut. 7 Conn.
Rep. 267.
3. In England, the bare solicitation of chastity is punished in the
ecclesiastical courts. 2 Chit. Pr. 478. Vide Str. 1100; 10 Mod. 384; Sayer,
33; 1 Hawk. ch. 74; 2 Ld. Raym. 809.
4. The civil law punished arbitrarily the person who solicited the
chastity of another. Dig. 47, 11, 1. Vide To persuade; 3 Phillim. R. 508.
SOLICITOR. A person whose business is to be employed in the care and
management of suits depending in courts of chancery.
2. A solicitor, like an attorney, (q.v.) will be required to act with
perfect good faith towards his clients. He must conform to the authority
given him. It is said that to institute a suit he must have a special
authority, although a general authority will be sufficient to defend one.
The want of a written authority, may subject him to the expenses incurred in
a suit. 3 Mer. R. 12; Hov, Fr. ch. 2, p. 28 to 61. Vide 1 Phil. Ev. 102; 19
Vin. Ab. 482; 7 Com. ]big. 357; 8 Com. Dig. 985; 2 Chit. Pr. 2. See Attorney
at law; Counsellor at law; Proctor.
SOLICITOR OF THE TREASURY. The title of one of the officers of the United
States, created by the act of May 29, 1830, 4 Sharsw. cont. of Story, L. U.
S. 2206, which prescribes his duties and his rights.
2.-1. His powers and duties are, 1. Those which were by law vested and
required from the agent of the treasury of the United States. 2. Those which
theretofore belonged to the commissioner, or acting commissioner of the
revenue, as relate to the superintendence of the collection of outstanding
direct and internal duties. 3. To take charge of all lands which shall be
conveyed to the United States, or set off to them in payment of debts, or
which are vested in them by mortgage or other security; and to release such
lands which had, at the passage of the act, become vested in the United
States, on payment of the debt for which they were received. 4. Generally to
superintend the collection of debts due to the United States, and receive
statements from different officers in relation to suits or actions commenced
for the recovery of the same. 5. To instruct the district attorneys,
marshals, and clerks of the circuit and district courts of the United
States, in all matters and proceedings appertaining to suits in which the
United States are a party or interested, and to cause them to report to him
any information he may require in relation to the same. 6. To report to the
proper officer from whom the evidence of debt was received, the fact of its
having been paid to him, and also all credits which have by due course of
law been allowed on the same. 7. To make rules for the government of
collectors, district attorneys and marshals, as may be requisite. 8. To
obtain from the district attorneys full accounts of all suits in their
hands, and submit abstracts of the same to congress.
3.-2. His rights are, 1. To call upon the attorney-general of the
United States for advice and direction as to the manner of conducting the
suits, proceedings and prosecutions aforesaid. 2. To receive a salary of
three thousand five hundred dollars per annum. 3. To employ, with the
approbation of the secretary of the treasury, a clerk, with a salary of one
thousand five hundred dollars; and a messenger, with a salary of five
hundred dollars. To receive and send all letters, relating to the business
of his office, free of postage.
SOLIDO, IN, civil law. In solido, is a term used to designate those
contracts in which the obligors are bound, jointly and severally, or in
which several obligees are each entitled to demand the whole of what is due.
2.-1. There is an obligation in solido on the part of debtors, when
they are all obliged to the same thing, so that each may be compelled to pay
the whole, and when the payment which is made by one of them, exonerates the
others towards the creditor.
3.-2. The obligation is in solido, or joint and several between several
creditors, when the title expressly gives to each of them the right of
demanding payment of the total of what is due, and when the payment to any
one of them discharges the debtor. Civ. Code of La. 2083,2086; Merl. Repert.
h.t.; Domat, Index, h.t. See In solido.
SOLITARY IMPRISONMENT. The punishment of separate confinement. This has been
adopted in Pennsylvania, with complete success. Vide Penitentiary.
SOLUTION, civil law. Payment.
2. By this term, is understood, every species of discharge or
liberation, which is called satisfaction, and with which the creditor is
satisfied. Dig. 46, 3, 54; Code 8, 43, 17; Inst. 3, 30. This term has rather
a reference to the substance of the obligation, than to the numeration or
counting of the money. Dig. 50, 16, 176. Vide Discharge of a contract.
SOLVENCY. The state of a person who is able to pay all his debts; the
opposite of insolvency. (q.v.)
SOLVENT. One who has sufficient to pay his debts, and all obligations. Dig.
50, 16, 114.
SOLVERE. To unbind; to untie; to release; to pay; solvere dicimus eum qui
fecit quod facere promisit. 1 Bouv. Inst. n. 807.
SOLVIT AD DIEM, pleading. The name of a plea to an action on a bond, or
other obligation to pay money, by which the defendant pleads that he paid
the money on the day it was due. Vide 1 Stra. 652; Rep. Temp. Hardw. 133;
Com. Dig. Pleader, 2 W 29.
2. This plea ought to conclude with an averment, and not to the
country. 1 Sid. 215; 12 John. R. 253; vide 2 Phil. Ev. 92; Coxe, R. 467.
SOLVIT POST DIEM, pleading. The name of a special plea in bar to an action
of debt on a bond, by which the defendant asserts that he paid the money
after the day it became due. 1 Chit. Pl. 480, 555; 2 Phil. Ev. 93.
SOMNAMBULISM, med. juris. Sleep walking.
2. This is sometimes an inferior species of insanity, the patient being
unconscious of what he is doing. A case is mentioned of a monk who was
remarkable for simplicity, candor and probity, while awake, but who during
his sleep in the night, would steal, rob, and even plunder the dead. Another
case is related of a pious clergyman, who during his sleep, would plunder
even his own church. And a case occurred in Maine, where the somnambulist
attempted to hang himself, but fortunately tied the rope to his feet,
instead of his neck. Ray. Med. Jur. Sec. 294.
3. It is evident, that if an act should be done by a sleep walker,
while totally unconscious of his act, he would not be liable to punishment,
because the intention (q.v.) and will (q.v.) would be wanting. Take, for
example, the following singular case: A monk late one evening, in the
presence of the prior of the convent, while in a state of somnambulism,
entered the room of the prior, his eyes open but fixed, his features
contracted into a frown, and with a knife in his hand. He walked straight up
to the bed, as if to ascertain if the prior were there, and then gave three
stabs, which penetrated the bed clothes, and a mat which served for the
purpose of a mattress; he returned. with an air of satisfaction, and his
features relaxed. On being questioned the next day by the prior as to what
he had dreamed the preceding night, the monk confessed he had dreamed that
his mother had been murdered by the prior, and that her spirit had appeared
to him and cried for vengeance, that he was transported with fury at the
sight, and ran directly to stab the assassin; that shortly after be awoke
covered with perspiration, and rejoiced to find it was only a dream.
Georget, Des Maladies Mentales, 127.
4. A similar case occurred in England, in the last century. Two
persons, who had been hunting in the day, slept together at night; one of
them was renewing the chase in his dream, and, imagining himself present at
the death of the stag, cried out aloud, "I'll kill him! I'll kill him!" The
other, awakened by the noise, got out of bed, and, by the light of the moon,
saw the sleeper give several deadly stabs, with a knife, on the part of the
bed his companion had just quitted. Harvey's Meditations on the Night, note
35; Guy, Med. Jur. 265.
SON, kindred. An immediate male descendant. In its technical meaning in
devises, this is a word of purchase, but the testator may make it a word of
descent. Sometimes it is extended to more remote descendants.
SON ASSAULT DEMESNE, pleading. His own first assault. A form of a plea to
justify an assault and battery, by which the defendant asserts that the
plaintiff committed an assault upon him, and the defendant merely defended
himself.
2. When the plea is supported by evidence, it is a sufficient
justification, unless the retaliation by the defendant were excessive, and
bore no proportion to the necessity, or to the provocation received. 1 East,
P. C. 406; 1 Chit. Pr. 595.
SON-IN-LAW, in Latin called gener. The husband of one's daughter.
SOUND MIND. That state of a man's mind which is adequate to reason and comes
to a judgment upon ordinary subjects, like other rational men.
2. The law presumes that every person who has acquired his full age is
of sound mind, and consequently competent to make contracts and perform all
his civil duties; and he who asserts to the contrary must prove the
affirmation of his position by explicit evidence, and not by conjectural
proof. 2 Hagg Eccl. R. 434; 3 Addams' R. 86; 8 Watts, R. 66; Ray, Med. Jur.
Sec. 92; 3 Curt. Eccl. R. 671. Vide Unsound mind.
SOUNDING IN DAMAGES. When an action is brought, not for the recovery of
lands, goods, or sums of money, (as is the case in real or mixed actions, or
the personal action of debt or detinue,) but for damages only, as in
covenant, trespass, &c., the action is said to be sounding in damages.
Steph. Pl. 126, 127.
SOUNDNESS. In usual health; without any permanent disease. 1 Carr. & Marsh.
291. To create unsoundness, it is requisite that the animal should not be
useful for the purpose for which he is bought, and that inability to be so
useful should arise from disease or accident. 2 M. & Rob. 137; 9 M. & W.
670. 2 M. & Rob. 113.
2. In the sale of slaves and animals they are sometimes warranted by
the seller to be sound, and it becomes important to ascertain what is
soundness. Roaring; (q.v.) a temporary lameness, which renders a horse less
fit for service; 4 Campb. 271; sed vide 2 Esp. Cas. 573; a cough, unless
proved to be of a temporary nature; 2 Chit. R. 245, 416; and a nerved horse,
have been held to be unsound. But cribbiting is not a breach of a general
warranty of soundness. Holt, Cas. 630.
3. An action on the case is the proper remedy for a verbal warrant of
soundness. 1 H. Bl. R. 17; 3 Esp. 82; 9 B. & Cr. 259; 2 Dow. & Ry. 10; 1
Bing. 344; 5 Dow. & R. 164; 1 Taunt. 566; 7 East, 274; Bac. Ab. Action on
the Case, E.
SOURCES OF THE LAW. By this expression is understood the authority from
which the laws derive their force.
2. The power of making all laws is in the people or -- their
representatives, and none can have any force whatever, which is derived from
any other source. But it is not required that the legislator shall expressly
pass upon all laws, and give the sanction of his seal, before they can have
life or existence. The laws are therefore such as have received ala express
sanction, and such as derive their force and effect from implication. The
first, or express, are the constitution of the United States, and the
treaties and acts of the legislature which have been made by virtue of the
authority vested by the constitution. To these must be added the
constitution of the state and the laws made by the state legislature, or by
other subordinate legislative bodies, by virtue of the authority conveyed by
such constitution. The latter, or tacit, received their effect by the
general use of them by the people, when they assume the name of customs by
the adoption of rules by the courts from systems of foreign laws.
3. The express laws, are first, the constitution of the United States;
secondly, the treaties made with foreign powers; thirdly, the acts of
congress; fourthly, the constitutions of the respective states; fifthly, the
laws made by the several state legislatures; sixthly, laws made by inferior
legislative bodies, such as the councils of municipal corporations, and
general rules made by the courts.
4.-1. The constitution is an act of the people themselves, made by
their representatives elected for that purpose. It is the supreme law of the
land, and is binding on all future legislative bodies, until it shall be
altered by tho authority of the people, in the manner, provided for in the
instrument itself, and if an act be passed contrary to the provisions of the
constitution, it is, ipso facto, void. 2 Pet. 522; 12 Wheat. 270; 2 Dall.
309; 3 Dall. 386; 4 Dall. 18; 6 Cranch, 128.
5.-2. Treaties made under the authority of the constitution are
declared to be the supreme law of the land, and therefore obligatory on
courts. 1 Cranch, 103. See Treaty.
6.-3. The acts and resolutions of congress enacted constitutionally,
are of course binding as laws and require no other explanation.
7.-4. The constitutions of the respective states, if not opposed to the
provisions of the constitution of the United States, are of binding force in
the states respectively, and no act of the state legislature has any force
which is made in contravention of the state constitution.
8.-5. The laws of the several states, constitutionally made by the
state legislatures, have full and complete authority in the respective
states.
9.-6. Laws are frequently made by inferior legislative bodies which are
authorized by the legislature; such are the municipal councils of cities or
boroughs. Their laws are generally known by the name of ordinances, and,
when lawfully ordained, they are binding on the people. The courts, perhaps
by a necessary usurpation, have been in the practice of making general rules
and orders, which sometime affect suitors and parties as much as the most
regular laws enacted by congress. These apply to all future cases. There are
also rules made in particular cases as they arise, but these are rather
decrees or judgments than laws.
10. The tacit laws, which derive their authority from the consent of
the people, without any legislative enactment, may be subdivided into 1st.
The common law, which is derived from two sources, the common law of
England, and the practice and decisions of our own courts. It is very
difficult, in many cases, to ascertain what is this common law, and it is
always embarrassing to the courts. Kirl. Rep. Pref. In some states, it has
been enacted that the common law of England shall be the law, except where
the same is inconsistent with our constitutions and laws. See Law.
2d. Customs which have been generally adopted by the people, have the
force of law.
3d. The principles of the Roman law, being generally founded in
superior wisdom, have insinuated themselves into every part of the law. Many
of the refined rules which now adorn the common law appear there without any
acknowledgment of their paternity, and it is at this source that some judges
dipt to get the wisdom which adorns their judgments. The proceedings of the
courts of equity and many of the admirable distinctions which manifest their
wisdom are derived from this source. To this fountain of wisdom the courts
of admiralty owe most of the law which governs in admiralty cases.
4th. The canon law, which was adopted by the ecclesiastical courts,
figures in our laws respecting marriage, divorces, wills and testaments,
executors and administrators and many other subjects.
5th. The jurisprudence, or decisions of the various courts, have
contributed their full share of what makes the law. These decisions are made
by following precedents, by borrowing from the sources already mentioned,
and, sometimes by the less excusable disposition of the judges to legislate
on the bench.
11. The monuments where the common law is to be found, are the records,
reports of cases adjudicated by the courts, and the treatises of learned
men. The books of reports are the best proof of what is the common law, but
owing to the difficulty of finding out any systematic arrangement, recourse
is had to treatises upon the various branches of the law. The records, owing
to their being kept in one particular place, and therefore not generally
accessible, are seldom used.
SOUS SEING PRIVE. An act sous seingprive, in Louisiana and by the French
law, is an act or contract evidenced by writing under the private signature
of the parties to it. The term is used in opposition to the authentic act,
which is an agreement entered into in the presence of a notary or other
public officer.
2. The form of the instrument does not give it its character so much as
the fact that it appears or does not appear to have been executed before the
officer. 7 N. S. 548 5 N. S. 196.
3. The effect of a sous seing prive is not the same as that of the
authentic act. The former cannot be given in evidence until proved, and,
unless accompanied by possession, it does not, in general, affect third
persons; 6 N. S. 429, 432; the latter, or authentic acts, are full evidence
against the parties and those who claim under them. 8 N. S. 132. See Act;
Authentic act.
SOUTH CAROLINA. The name of one of the original states of the United States
of America. For an account of its colonial history, see article North
Carolina.
2. The constitution of this state was adopted the third day of June,
1790, to which two amendments have been made, one, ratified December 17,
1808, and the other, December 19, 1816. The powers of the government are
distributed into three branches, the legislative, the executive, and the
judicial.
3.-1st. The legislative authority is vested in a general assembly,
which consists of a senate and house of representatives.
4.-1. The senate will be considered with reference to the
qualifications of the electors; the qualifications of the members; the
number of members; the duration of their office, and the time of their
election. 1. Every free white man, of the age of twenty-one years, being a
citizen of this state, and having resided therein two years previous to the
day of election, and who hath a freehold of fifty acres of land, or a town
lot, of which he hath been legally seised and possessed, at least six months
before such election, or, not having such freehold or town lot, hath been a
resident in the election district, in which he offers to give his vote, six
mouths before the said election, and hath paid a tax the preceding year of
three shillings sterling towards the support of this government, shall have
a right to vote for a member or members, to serve in either branch of the
legislature, for the election district in which he holds such property, or
is so resident. 2. No person shall be eligible to a seat in the senate,
unless he is a free white man, of the age of thirty years and hath been a
citizen and resident in this state five years previous to his election. If a
resident in the election district, he shall not be eligible unless he be
legally seised and possessed in his own right, of a settled freehold estate
of the value of three hundred pounds sterling, clear of debt. If a non-
resident in the election district, he shall not be eligible unless he be
legally seised and possessed in his own right, of a settled freehold estate
in the said district, of the value of one thousand pounds sterling, clear of
debt. 3. The senate is composed of one member from each district as now
established for the election of the house of representatives, except the
district formed by the districts of the parishes of St. Philip and St.
Michael, to which shall be allowed two senators as heretofore. Amend. of
Dec. 17, 1808. 4. They are elected for four years. Ibid. 5. The election
takes place on the second Monday in October. Art. 1, s. 10.
5.-2. The house of representatives will be considered in the same order
which has been observed in considering the senate. 1. The qualification of
electors are the same as those of electors of senators. 2. No person shall
be eligible to a seat in the house of representatives, unless he is a free
white man, of the age of twenty-one years, and hath been a citizen and
resident in this state three years previous to his election. If a resident
in the election district, he shall not be eligible to a seat in the house of
representatives, unless he be legally seised and possessed in his own right,
of a settled freehold estate of five hundred acres of land, and ten negroes;
or of a real estate, of the value of one hundred and fifty pounds sterling,
clear of debt. If a non-resident, he shall be legally seised and possessed
of a settled freehold estate therein, of the value of five hundred pounds
sterling, clear of debt. 3. The house consists of one hundred and twenty-
four members. Amend. of Dee. 17, 1808. 4. The members are elected for two
years. Art. l, s. 2. 5. The election is at the same time that the election
of senators is held.
6.-2. The executive authority is vested in a governor, and in certain
cases, a lieutenant-governor.
7.-1. Of the governor. It will be proper to consider his
qualifications; by whom he is to be elected; when to be elected; duration of
office; and his powers and duties. 1. No person shall be eligible to the
office of governor, unless he bath attained the age of thirty years, and
hath resided within this state, and been a citizen thereof, ten years, and
unless he be seised and possessed of a settled estate within the same, in
his own right, of the value of fifteen hundred pounds sterling, clear of
debt. Art. 2, s. 2. 2. He is elected by the senate and house of
representatives jointly, in the house of representatives. Art. 2, sect. 1.
3. He is to be elected whenever a majority of both houses shall be present.
lb. 4. He is elected for two years, and until a new election shall be made.
Ibid. 5. The governor is commander-in-chief of the army and navy of the
state, and of the militia, except when they shall be called into the actual
Service of the United States. He may grant reprieves and pardons, after
conviction, except in cases of impeachment, and remit fines and forfeitures,
unless otherwise directed by law shall cause the laws to be faithfully
executed in mercy -- may prohibit the exportation of provisions, for any
time not exceeding thirty days may require information from the executive
departments -- shall recommend such measures as he may deem necessary, and
give the assembly information as to the condition of the state may on
extraordinary occasions convene the assembly, and in case of disagreement
between the two houses with respect to the time of adjournment, adjourn them
to such time as he shall think proper, not beyond the fourth Monday in the
mouth of November then next ensuing.
8.-2. A lieutenant-governor is to be chosen at the same time, in the
same manner, continue in office for the same period, and be possessed of the
same qualifications as the governor. Art. 2, sect. 3. In case of the
impeachment of the governor, or his removal from office, death, resignation,
or absence from the state, the lieutenant-governor shall succeed to his
office. And in case of the impeachment of the lieutenant-governor, or his
removal from office, death, resignation, or absence from the state, the
president of the senate shall succeed to his office, till a nomination to
those offices respectively shall be made by the senate and house of
representatives, for the remainder of the time for which the officer so
impeached, removed from office, dying, resigning, or being absent, was
elected. Art. 2, s. 5.
9.-3. The judicial power shall be vested in such superior and inferior
courts of law and equity, as the legislature shall, from time to time,
direct and establish. The judges of each shall hold their commissions during
good behaviour; and judges of the superior courts shall, at stated times,
receive a compensation for their services, which shall neither be increased
nor diminished during their continuance in office: but they shall receive no
fees or perquisites of office, nor, hold any other office of profit or
trust, under this state, the United States, or any other power. Art. 3,
sect. 1. The judges are required to meet at such times, and places, as shall
be prescribed by the act of the legislature, and sit for the purpose of
hearing and determining all motions which may be made for new trials, and in
arrest of judgment, and such points of law as may be submitted to them.
Amend. of Dec. 19, 1816.
SOVEREIGN. A chief ruler with supreme power; one possessing sovereignty.
(q.v.) It is also applied to a king or other magistrate with limited powers.
2. In the United States the sovereignty resides in the body of the
people. Vide Rutherf. Inst. 282.
SOVEREIGN, Eng. law. The name of a gold coin of Great Britain of the value
of one pound sterling.
SOVEREIGN STATE. One which governs itself independently of any foreign
power.
SOVEREIGNTY. The union and exercise of all human power possessed in a state;
it is a combination of all power; it is the power to do everything in a
state without accountability; to make laws, to execute and to apply them: to
impose and collect taxes, and, levy, contributions; to make war or peace; to
form treaties of alliance or of commerce with foreign nations, and the like.
Story on the Const. Sec. 207.
2. Abstractedly, sovereignty resides in the body of the nation and
belongs to the people. But these powers are generally exercised by
delegation.
3. When analysed, sovereignty is naturally divided into three great
powers; namely, the legislative, the executive, and the judiciary; the first
is the power to make new laws, and to correct and repeal the old; the second
is the power to execute the laws both at home and abroad; and the last is
the power to apply the laws to particular facts; to judge the disputes which
arise among the citizens, and to punish crimes.
4. Strictly speaking, in our republican forms of government, the
absolute sovereignty of the nation is in the people of the nation; (q.v.)
and the residuary sovereignty of each state, not granted to any of its
public functionaries, is in the people of the state. (q.v.) 2 Dall. 471; and
vide, generally, 2 Dall. 433, 455; 3 Dall. 93; 1 Story, Const. Sec. 208; 1
Toull. n. 20 Merl. Repert. h.t.
SPADONES, civil law. Those who, on account of their temperament, or some
accident they have suffered, are unable to procreate. Inst. 1, 11, 9; Dig.
1, 7, 2, 1; and vide Impotence.
SPARSIM. This Latin adverb signifies scatteredly, here and there, in a
scattered manner, sparsedly, dispersedly. It is sometimes used in law; for
example, the plaintiff may recover the place wasted, not only where the
injury has been total, but where trees, growing sparsim in a close, are cut.
Bac. Ab. Waste, M; Brownl. 240; Co. Litt. 54, a; 4 Bouv. Inst. n. 3690.
TO SPEAK. This term is used in the English law, to signify the permission
given by a court to the prosecutor and defendant in some cases of
misdemeanor, to agree together, after which the prosecutor comes into court
and declares himself to be satisfied; when the court pass a nominal
sentence. 1 Chit. Pr. 17.
SPEAKER. The presiding officer of the house of representatives of the United
States is so called. The presiding officer of either branch of the state
legislatures generally bears this name.
SPEAKING DEMURRER, equity pleading. One which contains an argument in the
body of it; as, for instance, when a demurrer says, "in or about the year
1770," which is upwards of twenty years before the bill filed. 2 Ves. jr.
83; S. C. 4 Bro. C. C. 254.
SPECIAL. That which relates to a particular species or kind, opposed to
general; as special verdict and general verdict; special imparlance and
general imparlance; special jury, or one selected for a particular case, and
general jury; special issue and general issue, &c.
SPECIAL AGENT. A special agent is one whose authority is confined to a
particular, or an individual instance. It is a general rule, that he who is
invested with a special authority, must act within the bounds of his
authority, and he cannot bind his principal beyond what he is authorized to
do. 2 Bouv. Inst. n. 1299; 2 John. 48; 1 Wash. C. C. lT4; 5 John. 48; 15
John. 44; 8 Wend. 494.
SPECIAL ASSUMPSIT, practice. Where an action of assumpsit (q.v.) has been
brought on a special contract, and the plaintiff declares upon it, setting
out its particular language, or its legal effect. It is distinguished from a
general assumpsit, where the plaintiff, instead of setting out the
particular language, or effect of the original contract, declares as for a
debt, arising out of the execution of the contract, where that constitutes
the debt. 3 Bouv. Inst. n. 3426.
SPECIAL BAIL. A person who becomes specially bound to answer for the
appearance of another; the recognizance or act by which such person thus
becomes bound, is also called special bail. Vide Bail.
SPECIAL CONSTABLE. One who has been appointed a constable for a particular
occasion, as in the case of an actual tumult or a riot, or for the purpose
of serving a particular process.
SPECIAL DAMAGES. Such as actually have been suffered, and are not implied by
law. Vide Damages, Special; and 1 Chit. Pl. 385; Com. Dig. Action on the
case for Defamation, D 30, G 11.
SPECIAL DEMURRER, pleading. One which excepts to the sufficiency of the
pleadings on the opposite side, and shows specifically the nature of the
objection, and the particular ground of the exception. 3 Bouv. Inst. n.
3022. See Demurrer.
SPECIAL DEPOSIT. A deposit made of a particular thing with the depositary:
it is distinguished from an irregular deposit.
2. When a thing has been specially deposited with a depositary, the
title to it remains with the depositor, and if it should be lost, the loss
will fall upon him. When, on the contrary, the deposit is irregular, as
where money is deposited in a bank, the title to which is transferred to the
bank, if it be, lost, the loss will be borne by the bank. This will result
from the same principle; the loss will fall, in both instances, on the owner
of the thing, according to the rule res perit domino. See 1 Bouv. Inst. n. 1
054.
SPECIAL ERRORS. Special pleas in error are those which assign for error
matters in confession and avoidance, as a release of errors, the act of
limitations, and the like, to which the plaintiff in error may reply or
demur.
SPECIAL IMPARLANCE, pleading. One which contains the clause, "saving to
himself all advantages and exceptions, as well to the writ, as to the
declaration aforesaid." 2 Chit. Pl. 407, 8.
2. This imparlance admits the jurisdiction of the court, but the
defendant may plead in abatement or to the action; that is, to the writ or
the count. Gould. on Pl. c. 2, Sec. 18; Lawes on Pl. 84. See imparlance.
SPECIAL INJUNCTION. One obtained only on motion and petition, with notice to
the other party, and is applied for, sometimes on affidavit before answer,
but more frequently upon merits disclosed in the defendant's answer. 4 Bouv.
lust. n. 3756. See Injunction.
SPECIAL ISSUE, pleading. A plea to the action which denies some particular
material allegation, which is in effect a denial of the entire right of
action. It differs from the general issue which traverses or denies the
whole declaration or indictment. Gould. on Pl. c. 2, Sec. 38. See General
Issue; Issue.
SPECIAL JURY. One selected in a particular way by the parties. A panel is
made out, and each party is entitled to strike from it the names of a
certain number of jurors, as provided for by the local statutes, and from
those who remain, the jury in that case must be selected. This is also
called a struck jury.
SPECIAL NON EST FACTUM. The name of a plea by which the defendant says that
the deed which he has executed is not his own or binding upon him, because
of some circumstance which shows that it was not intended to be his deed, or
because it was not binding upon him for some lawful reason; as, when the
defendant delivered the deed to a third person as an escrow to be delivered
upon a condition, and it has been delivered without the performance of the
condition, he may plead non est factum, state the fact, of the conditional
delivery, the non-performance of the condition, and add, "and so it is not
his deed;" or if the defendant be a feme covert, she may plead non est
factum, that she was a feme covert at the time the deed was made, "and so it
is not her deed." Bac. Ab. Pleas, &c. H 3, 1 2; Gould. on Pl. c. 6, part 1,
Sec. 64. See Issint.
SPECIAL OCCUPANT, estates. When an estate is granted to a man and his heirs
during the life, of cestui que vie, and the grantee die without alienation,
and while the life for which he held continues, the heir will succeed, and
is called a special occupant. 2 Bl. Com. 259. In the United States the
statute provisions of the different states vary considerably upon this
subject. In New York and New Jersey, special occupancy is abolished.
Virginia, and probably Maryland, follow the English statutes; in
Massachusetts and other states, where the real and personal estates of
intestates are distributed in the same way and manner, the question does not
seem to be material. 4 Kent, Com. 27.
SPECIAL PARTNERSHIP. Special or limited partnerships are of two kinds; 1.
Those at common law. 2. Limited partnerships, or those in commendam.
2. Special partnerships at common law, are those formed for a
particular or special branch of business, as contradistinguished from the
general business of the parties, or of one of them.
3. A limited or special partnership, under special acts of assembly,
may be found in several states. In such partnerships some of the partners
are liable as general partners, while others are responsible only to the
extent of the capital they have furnished. See 2 Bouv. Inst. n. 1472, 1473,
and In Commendam; Partnership.
SPECIAL PLEA IN BAR. One which advances new matter. It differs from the
general in this, that the latter denies some material allegation, but never
advances new matter. Gould on Pl. c. 2, Sec. 38.
SPECIAL PLEADER, Eng. practice. A special pleader is a lawyer whose
professional occupation is to give verbal or written opinions upon
statements submitted to him, either in writing or verbally, and to draw
pleadings, civil or criminal, and such practical proceedings as may be out
of the general course. 2 Chit. Pr. 42.
SPECIAL PLEADING. The allegation of special or new matter, as distinguished
from a direct denial of matter previously alleged on the opposite side.
Gould on Pl. c. 1, s. 18; Co. Litt. 282; 3 Wheat. R. 246 Com. Dig. Pleader,
E 15.
SPECIAL PROPERTY. This term is used as synonymous with qualified or limited
property. It is that property which is not perfect in the hands of the
possessor, but his right is qualified or limited; as, where a person is
possessed of an animal ferae naturae, he has a property in such animal, but
this is not a general right, for if the animal should escape, and be taken
by another person, the latter only would have a special property in it.
2. Again, a person may have a special property in a chattel in
consequence of the peculiar circumstances of the owner; a bailee, for
example, has a special property in the thing bailed. 1 Bouv. Inst. n. 475 to
477.
SPECIAL REQUEST. One actually made, at a particular time and place; this
term is used in contradistinction to a general request, which need not
state. the time when, nor place where made. 3 Bouv. Inst. n. 2843.
SPECIAL RULE. A rule or order of court made in a particular case, for a
particular purpose; it is distinguished from a general rule, which applies
to a class of cases. It differs also from a common rule, or rule of course.
SPECIAL TRAVERSE, pleading. A technical special traverse begins in most
cases, with the words absque hoc, (without this,) which words in pleading
form a technical form of negation. Lawes' Pl. 116 to 120.
2. A traverse commencing with these words is special, because, when it
thus commences, the inducement and the negation are regularly both special;
the former consisting of new matter, and the latter pursuing, in general,
the words of the allegation traversed, or at least those of them which are
material. For example, if the defendant pleads title to land in himself, by
alleging that Peter devised the land to him, and then died seised in fee;
and the plaintiff replies that Peter died seised in fee intestate, and
alleges title in himself, as heir of Peter without this, that Peter devised
the land to the defendant; the traverse is special. Here the allegation of
Peter's intestacy, &c., forms the special inducement; and the absque hoc,
with what follows it, is a special denial of the alleged devise, i. e. a
denial of it in the words of the allegation. Lawes on Pl. 119, 120; Gould,
Pl. ch. 7, Sec. 6, 7; Steph. Pl. 188. Vide Traverse; General Traverse.
SPECIAL TRUST. A special trust, is one where a trustee is interposed for the
execution of some purpose particularly pointed out, and is not, as in the
case of a simple trust, a mere passive depositary of the estate, but is
required to exert himself actively in the execution of the settler's
intention; as, where a conveyance is made to trustees upon trust to
reconvey, or to sell for the payment of debts. 2 Bouv. Inst. n. 1896. See
Trust.
SPECIAL VERDICT, practice. A special verdict is one by which the facts of
the case are put on the record, and the law is submitted to the judges. Vide
Verdict; Bac. Ab. Verdict, D.
SPECIALTY, contracts. A writing sealed and delivered, containing some
agreement. 2 Serg. & Rawle, 503; 1 Binn. Rep. 261; Willes, 189; 1 P. Wms.
130. In a more confined meaning, it signifies a writing sealed and
delivered, which is given as a security for the payment of a debt, in which
such debt is particularly specified. Bac. Ab. Obligation, A.
2. Although in the body of the writing it is not said, that the parties
have set their hands and seals, yet if the instrument be really sealed it is
a specialty, and if it be not sealed, it is not a specialty, although the
parties in the body of the writing make mention of a seal. 2 Serg. & Rawle,
504; 2 Rep. 5 a; Perk. Sec. 129. Vide Bond; Debt; Obligation.
SPECIE. Metallic money issued by public authority.
2. This term is used in contradistinction to paper money, which in some
countries is emitted by the government, and is a mere engagement which
represents specie. Bank paper in the United States is also called paper
money. Specie is the only constitutional money in this country. See 4 Monr.
483.
SPECIFIC LEGACY. A bequest of a particular thing.
2. It follows that a specific legacy may be of animals or inanimate
things, provided they are specified and separated from all other things; a
specific legacy may therefore be of money in a bag, or of money marked and
so described; as, I give two eagles to A B, on which are engraved the
initials of my name. A specific legacy may also be given out of a general
fund. Touch. 433 Amb. 310; 4 Ves. 565; 3 Ves. & Bea. 5. If the specific
article given be, not found among the assets of the testator, the legatee
loses his legacy; but on the other hand, if there be a deficiency of assets,
the specific legacy will not be liable to abate with the general legacies. 1
Vern. 31; 1 P. Wms. 422; 3 P. Wms. 365; 3 Bro. C. C. 160; vide 1 Roper on
Leg. 150; 1 Supp. to Ves. jr. 209. Id. 231; 2 Id. 112; and articles
Legacy; Legatee.
SPECIFIC PERFORMANCE, remedies. The actual accomplishment of a contract by
the party bound to fulfill it.
2. Many contracts are entered into by parties to fulfill certain
things, and then the contracting parties neglect or refuse to fulfill their
engagements. In such cases the party grieved has generally a remedy at law,
and he may recover damages for the breach of the contract; but, in many
cases, the recovery of damages is an incompetent remedy, and the party seeks
to recover a specific performance of the agreement.
3. It is a general rule, that courts of equity will entertain
jurisdiction for a specific performance of agreements, whenever courts of
law can give but an inadequate remedy; and it is immaterial whether the
subject relate to real or personal estate. 1 Madd. Ch. Pr. 295; 2 Story on
Eq. Sec. 717; 1 Sim, & Stu. 607; 1 P. Wms. 570; 1 Sch. & Lef. 553; 1 Vern.
159.
4. But the rule is confined to cases where courts of law cannot give an
adequate remedy. 2 Story on Eq. Sec. 718; Eden on Inj. ch. 3, p. 27. Vide,
generally, 2 Story on Eq. ch. 18, Sec. 712 to 792; 1 Supp. to Ves. jr. 96,
148, 184, 211, 495; 2 Supp. to Ves. jr. 65, 164; Fonb. Eq. b. 1, c. 1, s. 5;
Sugd. Vend. 145.
SPECIFICATION, civil law. A term used in the civil law, by which is meant a
person's making a new species or subject from materials belonging to
another. Bouv. Inst. Theolo. ps. 1, c. 1, art. 1, Sec. 4, Is. 4, p. 74.
2. When the new species can be again reduced to the matter of which it
was made, the law considers the former mass as still existing, and,
therefore, the new species as an accessory to the former subject; but where
the thing made cannot be so reduced, as in the case of wine, which cannot be
again turned into grapes, there is no place for the fictio juris; and,
there, the workmanship draws after it the property of the material. Inst. 2,
1, 25 Dig. 41, 1, 7, 7. See Accession; Confusion; Mixtion; and Aso & Man.
Inst. B. 2, t. 2, c. 8.
SPECIFICATION, practice, contracts. A particular and detailed account of a
thing: example, in order to obtain a patent for an invention, it is
necessary to file a specification or an instrument of writing, which must
lay open and disclose to the public every part of the process by which the
invention can be made useful if the specification does not contain the whole
truth relative to the discovery, or contains more than is requisite to
produce the desired effect, and the concealment or addition was made for the
purpose of deception, the patent would be void; for if the specification
were insufficient on account of its want of clearness, exactitude or good
faith, it would be a fraud on society that the patentee should obtain a
monopoly without giving up his invention. 2 Kent, Com. 300; 1 Bell's Com.
part 2, c. 3, s. 1, p. 112; Perpigna on Pat. 67; Renouard, Des Brevets
d'Inv. 252.
2. In charges against persons accused of military offences, they must
be particularly described and clearly expressed; this is called the
specification. Tytl. on Courts Mart. 109.
SPECIMEN. A sample; a part of something by which the other may be known.
2. The act of congress of July 4, 1836, section 6, requires the
inventor or discoverer of an invention or discovery to accompany his
petition and specification for a patent with specimens of ingredients, an of
the composition of matter, sufficient in quantity for the purpose of
experiment, where the invention or discovery is of the composition of
matter.
SPECULATION, contracts. The hope or desire of making a profit by the
purchase and resale of a thing. Pard. Dr. Com. n. 12. The profit so made;
as, be made a good speculation.
SPEECH. A formal discourse in public.
2. The liberty of speech is guaranteed to members of the legislature,
to counsel in court in debate.
3. The reduction of a speech to writing and its publication is a libel,
if the matter contained in it is libelous; and the repetition of it upon
occasions not warranted by law, when the matter is slanderous, will be
slander and. tho character of the speaker will be no protection to him from
an action. 1 M. & S. 273; 1 Esp. C. 226 Bouv. Inst. Index, h.t. See Debate;
Liberty of speech.
SPELLING, The art of putting the proper letters in words.
2. It is a rule that when it appears with certainty what is meant, bad
spelling will not avoid a contract; for example, where a man agreed to pay
thirty pounds, he was held bound to pay thirty pounds; and sentence was
holden to be seventeen. Cro. Jac. 607; 10 Coke, 133, a; 2 Roll. Ab. 147.
3. Even in an indictment undertood has been holden as understood. 1
Chit. Cr. Law.
4. A misspelling of a name in a declaration, will not be sufficient to
defeat the plaintiff, on the ground of variance between the writing
produced, and the declaration, if such name be idem sonans; as Kay for Key.
16 East, 110; 2 Stark. 29; Segrave for Seagrave. 2 Str. 889. See Idem
Sonans.
SPENDTHRIFT. By the Rev. Stat. of Vermont, tit. 16, c. 65, s. 9, spendthrift
is defined to be a person who by excessive drinking) gaming, idleness or
debauchery of any kind, shall so spend, waste, or lessen his estate as to
expose himself or his family to want or suffering, or expose the town to
charge or expense, for support of himself or family.
SPERATE. That of which there is hope.
2. In the accounts of an executor and the inventory of the personal
assets, he should distinguish between those assets which are sperate, and
those which are desperate; he will be prima facie responsible for the
former, and discharged for the latter. 1 Chit. Pr. 520; 2 Williams Ex. 644;
Toll. Ex. 248. See Desperate.
SPES RECUPERANDI. The hope of recovery. This term is applied to cases of
capture of an enemy's property as a booty or prize. As between the
belligerent parties, the title to the property taken as a prize passes the
moment there is no longer any hope of recovery. 2 Burr. Rep. 683. Vide Infra
praesidea; Jus Postliminy; Booty; Prize.
SPINSTER. An addition given, in legal writings, to a woman who never was
married. Lovel. on Wills, 269.
SPLITTING A CAUSE OF ACTION. The bringing an action for only a part of the
cause of action. This is not permitted either at law nor in equity. 4 Bouv.
Inst. n. 4167.
SPOLIATION, Eng. eccl. law. The name of a suit sued out in the spiritual
court to recover for the fruits of the church, or for the church itself. F.
N. B. 85.
2. It is also a waste of church property by an ecclesiastical person. 3
Bl. Com. 90.
SPOLIATION, torts. Destruction of a thing by the act of a stranger; as, the
erasure or alteration of a writing by the act of a stranger, is called
spoliation. This has not the effect to destroy its character or legal
effect. 1 Greenl. Ev. Sec. 566. 2. By spoliation is also understood the
total destruction of a thing; as, the spoliation of papers, by the captured
party, is generally regarded as proof of. guilt, but in America it is open
to explanation, except in certain cases where there is a vehement
presumption of bad faith. 2 Wheat. 227, 241; 1 Dods. Adm. 480, 486. See
Alteration.
SPONSALIA, or STIPULATIO SPONSALITIA. A promise lawfully made between
persons capable of marrying each other, that at some future time they will
marry. See Espousals; Ersk. Inst. B. 1, t. 6, n. 3.
SPONSIONS, international law. Agreements or engagements made by certain
public officers, as generals or admirals, in time of war, either without
authority, or by exceeding the limits of authority under which they purport
to be made.
2. Before these conventions can have any binding authority on the
state, they must be confirmed by express or tacit ratification. The former
is given in positive terms and in the usual forms; the latter is justly
implied from the fact of acting under the agreement as if bound by it, and
from any other circumstance from which an assent may be fairly presumed.
Wheat. Intern. Law, pt. 3, c. 2, Sec. 3; Grotius, de Jur. Bel. ac Pac. 1. 2,
c. 15, Sec. 16; Id. 1. 3, c. 22, 1-3: Vattel, Law of Nat, B. 2, c. 14, 209-
212; Wolff, 1156.
SPONSOR, civil law. He who intervenes for another voluntarily and without
being requested. The engagement which he enters into is only accessory to
the principal. Vide Dig. 17, 1, 18; Nov. 4, ch. 1 Code de Com. art. 158,
159; Code Nap. 1236 Wolff, Inst. Sec. 1556.
SPRING. A fountain.
2. The owner of the soil has the exclusive right to use a spring
arising on his grounds. When another has an easement, or right to draw water
from such a spring, acquired by grant or prescription, if the spring fails
the easement ceases, but if it returns, the right revives.
3. The waters which flow from the spring give rise to a variety of
difficulties, the principal of which are, 1st. The owner of the inheritance
in which the spring arises turns their course. The owner of the inferior
estate, whose, meadow they fertilized, and who is deprived of them, claiming
the right to them. 2d. The owner of the spring does not prevent the water
from flowing on the inferior estate, but gives them a new direction
injurious to it. 3d. The owner of the superior inheritance disposes of the
water in such a way as to deprive the owner of the estate below him. The
rights of these different owners will be separately considered.
4.-1. The owner of land on which there is a natural spring, has a right
to use it for domestic and culinary purposes and for watering his cattle,
and he may make an aqueduct to another part of his land, and use all the
water required to keep the aqueduct in order, or to keep the water pure. 15
Conn. 366. He may also use it for irrigation, provided the volume be not
materially decreased. Ang. W. C. 34. Vide Irrigation; and 1 Root, 535; 2
Watts. 327; 2 Hill, S. C. 634; Coxe, 460; 2 Dev. & Bat. 50; 9 Conn. 291; 3
Pick. 269; 13 Mass. 420; 8 Mass. 136; 8 Greenl. 253.
5.-2. The owner of the spring cannot lawfully turn the current or give
it a new direction. He is bound to let it enter the inferior estate on the
same level it has been accustomed to, and at the same place; for every man
is entitled to a stream of water flowing through his land, without
diminution or alteration. 6 East, 206; 2 Conn. 584. Vide 3 Rawle, 84 12
Wend. 330; 10 Conn. 213; 14 Vern. 239.
6.-3. The owner of the superior inheritance, or of the land on which
there is a spring, has no right to deprive the owner of the estate below
him; 1 Yeates, 574; 5 Pick. 175; 3 Har. & John. 231; 12 Vern. 178; 13 Conn.
303; 3 Scam. 492; nor can be detain the water unreasonably. 17 John. 306; 2
B. C. 910. Vide Ham. N. P. 199; 1 Dall. 211; 3 Rawle's R. 256; Jus
Aquaeductus; Pool; Stagnum; Back Water; Irrigation, Mill; Rain Water; Water
Course.
SPRINGING USE, estates. One to arise on a future event, when no preceding
estate is limited, and does not take effect in derogation of any preceding
interest. Example: a grant is made to A in fee, to the use of B in fee,
after the fourth of July; no use arises till the limited period. The use in
the mean time results to the grantor, who has a determinable fee. A
springing use differs from a resulting use, (q.v.) or a shifting use. (q.v.)
4 Kent, Com. 292; Com. Dig. Uses, K 7 Wils. on Springing Uses; Corn. on
Uses, 91; 2 Bouv. Inst. n. 1889.
SPY. One who goes into a place for the purpose of ascertaining the best way
of doing an injury there.
2. The term is mostly applied to an enemy who comes into the camp for
the purpose of ascertaining its situation in order to make an attack upon
it. The punishment for, this crime is death. See Articles of War, 1 Story's
Laws U. S. 992; Vattel, Droit des Gens. liv. 3, Sec. 179.
SQUATTER. One who settles on the lands of others without any legal
authority; this term is applied particularly to persons who settle on the
public land. 3 Mart. N. S. 293.
TO STAB. To make a wound with a pointed instrument; a stab differs from a
cut, (q.v.) or a wound. (q.v.) Russ. & Ry. 356; Russ. on Cr. 597; Bac. Ab.
Maihem, B.
STAGNUM, estates. A pool. It is said to consist of land and water, and
therefore by the name of stagnum, the water and the land may be passed. Co.
Litt. 5.
STAKEHOLDER, contracts. A third person, chosen by two or more persons, to
keep in deposit property, the right or possession of which is contested
between them and to be delivered to the one who shall establish his right to
it. Thus each of them is considered as depositing the whole thing. This
distinguishes this contract from that which takes place when two or more
tenants in common deposit a thing with a bailee. Domat, Lois Civ. liv. 1, t.
7, s. 4; 1 Vern. R. 44, n. 1.
2. A person having in his hands money or other property claimed by
several others, is considered in equity as a stakeholder. 1 Vern. R. 144.
3. The duties of a stakeholder are to deliver the thing holden by him
to the person entitled to it on demand. It is frequently questionable who is
entitled to it. In case of an unlawful wager, although be may be justified
for delivering the thing to the winner, by the express or implied consent of
the loser; 8, John. 147; yet if before the event has happened he has been
required by either party to give up the thing deposited with him by such
party, he is bound so to deliver it; 3 Taunt. 377; 4 Taunt. 492; or if,
after the event has happened, the losing party give notice to the
stakeholder not to pay the winner, a payment made to him afterwards will be
made in his own wrong, and the party who deposited the money or thing may
recover it from the stakeholder. 16 S. & R. 147; 7 T. R. 536; 8 T. R. 575; 4
Taunt. 474; 2 Marsh. 542. See 3 Penna. R. 468; 4 John. 426; 5 Wend. 250; 2
P. A. Browne, 182; 1 Bailey, 486, 503. See Wagers.
STALE DEMAND. A stale demand is a claim which has been for a long time
undemanded; as, for example, where there his been a delay of twelve years,
unexplained. 3 Mason, 161.
STAMP, revenue. An impression made on paper, by order of the government,
which must be used in reducing certain contracts to writing, for The purpose
of raising a revenue. Vide Stark. Ev. h.t.; 1 Phil. Ev. 444.
2. Maryland is the only state in the United States that has enacted a
stamp.
TO STAND. To abide by a thing; to submit to a decision; to comply with an
agreement; to have validity, as the judgment must stand.
STAND SEISED TO USES. This phrase is frequently used in relation to
conveyances under the statute of uses. A covenant to stand seised to uses is
a species of conveyance which derives its effect from the statute of uses,
by which a man, seised of lands, covenants, in consideration of blood or
marriage, that he will stand seised of the same, to the use of his child,
wife, or kinsman, for life, in tail or in fee. 2 Bouv. Inst. n. 2080.
STANDARD, in war. An ensign or flag used in war.
STANDARD, measure. A weight or measure of certain dimensions, to which all
other weights and measures must correspond; as, a standard bushel. Also the
quality of certain metals, to which all others of the same kind ought to be
made to conform; as, standard gold, standard silver. Vide Dollar; Eagle;
Money.
STAPLE, intern. law. The right of staple as exercised by a people upon
foreign merchants, is defined to be, that they may not allow them to set
their merchandises and wares to sale but in a certain place.
2. This practice is not in use in the United States. 1 Chit. Com. Law,
103; 4 Inst. 238; Malone, Lex Mere. 237; Bac. Ab. Execution, B 1. Vide
Statute Staple.
STAR CHAMBER, Eng. law. A court which formerly had great jurisdiction and
power, but which was abolished by stat. 16, C. I., c. 10, on account of its
usurpations and great unpopularity. It consisted of several of the lords
spiritual and temporal, being privy counsellors, together with two judges of
the courts of common law, without the intervention of a jury. Their legal
jurisdiction extended over riots, perjuries, misbehaviour of public
officers, and other great misdemeanors. The judges afterwards assumed
powers, and stretched those they possessed to the utmost bounds of legality.
4 Bl. Com. 264.
STARE DECISIS. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by
decision, it forms a precedent which is not afterwards to be departed from.
The doctrine of stare decisis is not always to be relied upon, for the
courts find it necessary to overrule cases which have been hastily decided,
or contrary to principle. Many hundreds of such overruled cases may be found
in the American and English books of reports. Mr. Greenleaf has made a
collection of such cases, to which the reader is referred. Vide 1 Kent, Com.
477; Livingst. Syst. of Pen. Law, 104, 5.
STARE IN JUDICIO. The act of appearing before a tribunal, either as
plaintiff or defendant. Vide Ester en judgement.
STATE, government. This word is used in various senses. In its most enlarged
sense, it signifies a self-sufficient body of persons united together in one
community for the defence of their rights, and to do right and justice to
foreigners. In this sense, the state means the whole people united into one
body politic; (q.v.) and the state, and the people of the state, are
equivalent expressions. 1 Pet. Cond. Rep. 37 to 39; 3 Dall. 93; 2 Dall. 425;
2 Wilson's Lect. 120; Dane's Appx. Sec. 50, p. 63 1 Story, Const. Sec. 361.
In a more limited sense, the word `state' expresses merely the positive or
actual organization of the legislative, or judicial powers; thus the actual
government of the state is designated by the name of the state; hence the
expression, the state has passed such a law, or prohibited such an act.
State also means the section of territory occupied by a state, as the state
of Pennsylvania.
2. By the word state is also meant, more particularly, one of the
commonwealths which form the United States of America. The constitution of
the United States makes the following provisions in relation to the states.
3. Art. 1, s. 9, Sec. 5. No tax or duty shall be laid on articles
exported from any state. No preference shall be given by any regulation of
commerce or revenue to the ports of one state over those of another, nor
shall vessels bound to or from one state be obliged to enter, clear, or pay
duties in another.
4.-Sec. 6. No money shall be drawn from the treasury but in consequence
of appropriations made by law; and a regular statement and account of the
receipts and expenditures of all public money shall be published from time
to time.
5.-Sec. 7. No title of nobility shall be granted by the United States,
and no person holding any office of profit or trust under them shall,
without the consent of congress, accept of any present, emolument, office,
or title of any kind whatever, from, any king, prince, or foreign state.
6.-Art. 1, s. 10, Sec. 1. No state shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal; coin
money; emit bills of credit; make anything but gold and silver coin a tender
in payments of debts; pass any bill of attainder, ex-post-facto, or law
impairing the obligation of contracts; or grant any title of nobility.
7.-Sec. 2. No state shall, without the consent of congress, lay any
imposts or duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws; and the net produce of all
duties and imposts laid by any state on imports or exports shall be for the
use of the treasury of the United States, and all such laws shall be subject
to the revision and control of congress. No state, shall, without the
consent of congress, lay any duty on tonnage, keep troops or ships of war in
time of peace, enter into any agreement or compact with another state, or
with a foreign power, or engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay.
8. The district of Columbia and the territorial districts of the United
States, are not states within the meaning of the constitution and of the
judiciary act, so as to enable a citizen thereof to sue a citizen of one of
the states in the federal courts. 2 Cranch, 445; 1 Wheat. 91.
9. The several states composing the United States are sovereign and
independent, in all things not surrendered to the national government by the
constitution, and are considered, on general principles, by each other as
foreign states, yet their mutual relations are rather those of domestic
independence, than of foreign alienation. 7 Cranch, 481; 3 Wheat. 324; 1
Greenl. Ev. Sec. 489, 504. Vide, generally, Mr. Madison's report in the
legislature of Virginia, January, 1800; 1 Story's Com. on Const. Sec. 208; 1
Kent, Com. 189, note b; Grotius, B. 1, c. 1, s. 14; Id. B. 3, c. 3, s. 2;
Burlamaqui, vol. 2, pt. 1, c. 4, s. 9; Vattel, B. 1, c. 1; 1 Toull. n. 202,
note 1 Nation; Cicer. de Repub. 1. 1, s. 25.
STATE, condition of persons. This word has various acceptations. If we
inquire into its origin, it will be found to come from the Latin status,
which is derived from the verb stare, sto, whence has been made statio,
which signifies the place where a person is located, stat, to fulfill the
obligations which are imposed upon him.
2. State is that quality which belongs to a person in society, and
which secures to, and imposes upon him different rights and duties in
consequence of the difference of that quality.
3. Although all men come from the hands of nature upon an equality, yet
there are among them marked differences. It is from nature that come the
distinctions of the sexes, fathers and children, of age and youth, &c.
4. The civil or municipal laws of each people, have added to these
natural qualities, distinctions which are purely civil and arbitrary,
founded on the manners of the people, or in the will of the legislature.
Such are the differences, which these laws have established between citizens
and aliens, between magistrates and subjects, and between freemen and
slaves; and those which exist in some countries between nobles and
plebeians, which differences are either unknown or contrary to natural law.
5. Although these latter distinctions are more particularly subject to
the civil or municipal law, because to it they owe their origin, it
nevertheless extends its authority over the natural qualities, not to
destroy or to weaken them, but to confirm them and to render them more
inviolable by positive rules and by certain maxims. This union of the civil
or municipal and natural law, form among men a third species of differences
which may be called mixed, because they participate of both, and derive
their principles from nature and the perfection of the law; for example,
infancy or the privileges which belong to it, have their foundation in
natural law; but the age and the term of these prerogatives are determined
by the civil or municipal law.
6. Three sorts of different qualities which form the state or condition
of men may then be distinguished: those which are purely natural, those
purely civil, and those which are composed of the natural and civil or
municipal law. Vide 3 Bl. Com. 396; 1 Toull. n. 170, 171; Civil State.
TO STATE. To make known specifically; to explain particularly; as, to state
an account, or to show the different items of an account; to state the cause
of action in a declaration.
STATEMENT, pleading and in practice. In the courts of Pennsylvania, by the
act to regulate arbitrations and proceedings in courts of justice, passed
March 21, 1806, 4 Smith's Laws of Penn. 828, it is enacted, "that in all
cases where a suit may be brought in any court of record for the recovery of
any debt founded on a verbal promise, book account, note, bond, penal or
single bill, or all or any of them, and which from the amount thereof may
not be cognizable before a justice of the peace, it shall be the duty of the
plaintiff, either by himself, his agent or attorney, to file in the office
of the prothonotary a statement of his, her or their demand, on or before
the third day of the term to which the process issued is returnable,
particularly specifying the date of the promise, book account, note, bond,
penal or single bill or all or any of them, on which the demand is founded,
and the whole amount which he, she, or they believe is justly due to him,
her or them from the defendant."
2. This statement stands in the place of a declaration, and is not
restricted to any particular form; 3 Serg. & Rawle, 406; it is an
immethodical declaration, stating in substance the time of the contract, the
sum, and on what founded, with (what is an important principle in a
statement, 6 Serg. & Rawle, 21,) a certificate of the belief of the
plaintiff or his agent, of what is really due. Serg. & Rawle, 28. See 6
Serg. & Rawle, 53; 8 Serg. & Rawle, 567; 2 Serg. & Rawle, 537; 2 Browne's R.
40; 8 Serg. & R. 316.
STATES. By this name are understood in some countries, the assembly of the
different orders of the people to regulate the affairs of the commonwealth,
as, the states general.
STATION, civil law. A place where ships may ride in safety. Dig. 49, 12, 1,
13; id. 50, 15, 59.
STATING-PART OF A BILL, chancery practice. That part of a bill which
contains a narrative of the facts and circumstances of the plaintiff's case,
and the wrong or grievance of which he complains, and the names of the
persons by whom done, and against whom he seeks redress, is called the
stating part of the bill. Bart. Suit in Eq. 27; Coop. Eq. Pl. 9; Story, Eq.
Pl. Sec. 27.
STATU LIBERI, in Louisiana. Slaves for a time, who have acquired the right
of being free at a time to come, or on a condition which is not fulfilled,
or in a certain event which has not happened, but who, in the mean time,
remain in a state of slavery. Code, art. 37. See 8 M. R. 219; 3 L. R. 176; 6
L. R. 571; 4 N. S. 102; 7 N. S. 351. This is substantially the definition of
the civil law. Hist. de la Jur. 1. 40; Dig. 40, 7, 1; Code, 7, 2, 13.
STATUS. The condition of persons. It also means estate, because it signifies
the condition or circumstances in which the owner stands with regard to his
property. 2 Bouv. Inst. n. 1689.
STATUTE. The written will of the legislature, solemnly expressed according
to the forms prescribed in the constitution; an act of the legislature.
2. This word is used in contradistinction to the common law. Statutes
acquire their force from the time of their passage unless otherwise
provided. 7 Wheat. R. 104: 1 Gall. R. 62.
3. It is a general rule that when the provision of a statute is
general, everything which is necessary to make such provision effectual is
supplied by the common law; Co. Litt. 235; 2 Inst. 222; Bac. Ab. h.t. B; and
when a power is given by statute, everything necessary for making it
effectual is given by implication: quando le aliquid concedit, concedere
videtur et id pe quod devenitur ad aliud. 12 Co. 130, 131 2 Inst. 306.
4. Statutes are of several kinds; namely, Public or private. 1. Public
statutes are those of which the judges will take notice without pleading;
as, those which concern all officers in general; acts concerning trade in
general or any specific trade; acts concerning all persons generally. 2.
Private acts, are those of which the judges will not take notice without
pleading; such as concern only a particular species, or person; as, acts
relating to any particular place, or to several particular places, or to one
or several particular counties. Private statutes may be rendered public by
being so declared by the legislature. Bac. Ab. h.t. F; 1 Bl. Com. 85.
Declaratory or remedial. 1. A declaratory statute is one which is passed in
order to put an end to a doubt as to what the common law is, and which
declares what it is, and has ever been. 2. Remedial statutes are those which
are made to supply such defects, and abridge such superfluities in the
common law as may have been discovered. 1 Bl. Com. 86. These remedial
statutes are themselves divided into enlarging statutes, by which the common
law is made more comprehensive and extended than it was before; and into
restraining statutes, by which it is narrowed down to that which is just and
proper. The term remedial statute is also applied to those acts which give
the party injured a remedy, and in some respects those statutes are penal.
Esp. Pen. Act. 1.
6. Temporary or perpetual. 1. A temporary statute is one which is
limited in its duration at the time of its enactment. It continues in force
until the time of its limitation has expired, unless sooner repealed. 2. A
perpetual statute is one for the continuance of which there is no limited
time, although it be not expressly declared to be so. If, however, a statute
which did not itself contain any limitation, is to be governed by another
which is temporary only, the former will also be temporary and dependent
upon the existence of the latter. Bac. Ab. h.t. D.
7. Affirmative or negative. 1. An affirmative statute is one which is
enacted in affirmative terms; such a statute does not take away the common
law. If, for example, a statute without negative words, declares that when
certain requisites shall have been complied with, deeds shall, have in
evidence a certain effect, this does not prevent their being used in
evidence, though the requisites have not been complied with, in the same
manner as they might have been before the statute was passed. 2 Cain. R.
169. 2. A negative statute is one expressed in negative terms, and so
controls the common law, that it has no force in opposition to the statute.
Bro. Parl. pl. 72; Bac. Ab. h.t. G.
8. Penal statutes are those which order or prohibit a thing under a
certain penalty. Esp. Pen. Actions, 5 Bac. Ab. h.t. I, 9. Vide, generally,
Bac. Ab. h.t.; Com. Dig. Parliament; Vin. Ab. h.t.; Dane's Ab. Index, h.t.;
Chit. Pr. Index, h.t.; 1 Kent, Com. 447-459; Barrington on the Statutes,
Boscaw. on Pen. Stat.; Esp. on Penal Actions and Statutes.
9. Among the civilians, the term statute is generally applied to all
sorts of laws and regulations; every provision of law which ordains,
permits, or prohibits anything is a statute without considering from what
source it arises. Sometimes the word is used in contradistinction to the
imperial Roman law, which, by way of eminence, civilians call the common
law. They divide statutes into three classes, personal, real and mixed.
10. Personal statutes are those which have principally for their object
the person, and treat of property only incidentally; such are those which
regard birth, legitimacy, freedom, the fight of instituting suits, majority
as to age, incapacity to contract, to make a will, to plead in person, and
the like. A personal statute is universal in its operation, and in force
everywhere.
11. Real statutes are those which have principally for their object,
property, and which do not speak of persons, except in relation to property;
such are those which concern the disposition, which one may make of his
property either alive or by testament. A real statute, unlike a personal
one, is confined in its operation to the country of its origin.
12. Mixed statutes are those which concern at once both persons and
property. But in this sense almost all statutes are mixed, there being
scarcely any law relative to persons, which does not at the same time relate
to things. Vide Merl. Repert. mot Statut; Poth. Cout. d'Orleans, ch. 1; 17
Martin's Rep. 569-589; Story's Confl. of Laws, Sec. 12, et seq.; Bouv. Inst.
Index, h.t.
STATUTE MERCHANT, English law. A security entered before the mayor of
London, or some chief warden of a city, in pursuance of 13 Ed. 1. stat. 3,
c. 1, whereby the lands of the debtor are conveyed to the creditor, till out
of the rents and profits of them, his debt may be satisfied. Cruise, Dig. t.
14, s. 7; 2 Bl. Com. 160.
STATUTES STAPLE, English law. The statute of the staple, 27 Ed. HI. stat. 2,
confined the sale of all commodities to be exported to certain towns in
England, called estaple or staple, where foreigners might resort. It
authorized a security for money, commonly called statute staple, to be taken
by traders for the benefit of commerce; the mayor of the place is entitled
to take a recognizance of a debt, in proper form, which has the effect to
convey the lands of the debtor to the creditor, till out of the rents and
profits of them he may be satisfied. 2 Bl. Com. 160; Cruise, Dig. tit. 14,
s. 10; 2 Rolle's Ab. 446; Bac. Ab. Execution, B. 1 4 Inst. 238.
STATUTI, Rom. civ. law. From Constantine to Justinian, advocates, were
arranged in two classes: viz. those called Statuti, and the supernumeraries.
(q.v.) The Statute were those advocates whose names were inscribed in the
registers of matriculation, and formed a part of the college of advocates.
The number of advocates of this class was limited. See Calvini Lex ad vocem.
STAY OF EXECUTION, practice. A term during which no execution can issue on a
judgment.
2. It is either conventional, when the parties agree that no execution
shall issue for a certain period; or it is granted by law, usually on
condition of entering bail or security for the money.
3. An execution issued before the expiration of the stay is irregular
and will be set aside; and the plaintiff in such case may be liable to an
action for damages. What is said above refers to civil cases.
4. In criminal cases when a woman is capitally convicted, and she is
proved to be enceinte, (q.v.) there shall be a stay of execution till after
her delivery. Vide Pregnancy.
STAYING PROCEEDINGS. The suspension of an action.
2. Proceedings are stayed absolutely or conditionally.
3.-1. They are peremptorily stayed when the plaintiff is wholly
incapacitated from suing; as, for example, when the plaintiff is not the
holder, nor beneficially interested in a bill on which he has brought his
action; 2 Cr, & M. 416; 2 Dowl. 336; Chitty on Bills, 335; 3 Chitty, Pr.
628; or when the plaintiff admits in writing, that he has no cause of
action; 3 Chit. Prac. 370, 630; or when an action is brought contrary to
good faith. Tidd's Prac. 515, 529, 1134; 3 Chit. Pr. 633.
4.-2. Proceedings are sometimes stayed until some order of the court
shall have been complied with; as, when the plaintiff resides in a foreign
country, or in another estate, or is insolvent, and he has been ruled to
give security for costs, the proceedings are stayed until such security
shall be given; see Security for Costs; 3 Chit. Pr, 633, 635; or until the
payment of costs in a, former action. 1 Chit. R. 195; 18 E. C. L. R. 64.
STEALING. This term imports, ex vi termini, nearly the same as larceny; but
in common parlance, it does not always import a felony; as, for example, you
stole an acre of my land.
2. In slander cases, it seems that the term stealing takes its
complexion from the subject-matter to which it is applied, and will be
considered as intended of a felonious stealing, if a felony could have been
committed of such subject-matter. Stark. on Slan. 80; 12 Johns. Rep. 239; 3
Binn. R. 546; Whart. Dig. tit. Slander.
STELLIONATE, civil law. A name given generally, to all species of frauds
committed in making contracts.
2. This word is said to be derived from the Latin stellio, a kind of
lizard remarkable for its cunning and the change of its color, because those
guilty of frauds used every art and cunning to conceal them. But more
particularly it was the crime of a person who fraudulently assigned, sold,
or engaged the thing which he had before assigned sold, or engaged to
another, unknown to the person with whom be was dealing. Dig. 47, 20, 3;
Code, 9, 34, 1; Merl. Repert. h.t.; Code Civil, art. 2069; 1 Bro. Civ. Law,
426.
3. In South Carolina and Georgia, a mortgagor who makes a second
mortgage without disclosing in writing, to the second mortgagee, the
existence of the first mortgage, is not allowed to redeem and, in the
foreign state, when a person suffers a judgment, or enters into a statute or
recognizance binding his land, afterwards mortgages it, without giving
notice, in writing, of the prior incumbrance, he shall not be allowed to
redeem, unless, within six months from a written demand, he discharges such
incumbrance. Prin. Dig. 161; 1 Brev. Dig. 166-8.
4. In Ohio a fraudulent conveyance is punished as a crime; Walk. Intr.
350; and, in Indians, any party to a fraudulent conveyance is subjected to a
flue and to double damages. Ind. Rev. Laws, 189. See 12 Pet. 773.
STEP-DAUGHTER. In Latin privigna, is the daughter of one's wife, or of one's
husband.
STEP-FATHER. In Latin vitricus, is the husband of one's mother who is not
the father of the person spoken of.
STEP-MOTHER. In Latin noverca, is the wife of one's father, who is not the
mother of the person spoken of.
STEP-SON. In Latin privignus, is the son of one's wife, or of one's husband.
STERE. A French measure of solidity used in measuring wood. It is a cubic
metre. Vide Measure.
STERILITY. Barrenness; incapacity to produce a child. It is curable and
incurable; when of the latter kind, at the time of the marriage, and arising
from impotency, it is a good cause for dissolving a marriage. 1 Fodere, Med.
Leg. Sec. 254. See Impotency.
STERLING. Current money of Great Britain, but anciently a small coin, worth
about one penny; and so called, as some suppose, because it was stamped with
the figure of a small star, or, as others suppose, because it was first
stamped in England in the reign of King John, by merchants from Germany
called Esterlings. Pounds sterling, originally signified so many pounds in
weight of these coins. Thus we find in Matthew Paris, A.D. 1242, the
expression "Accepit a rege pro stipendio tredecim libras esterlingorum." The
secondary or derived sense is a certain value in current money, whether in
coins or other currency. Lowndes, 14. Watts' Gloss. Ad verbum.
STET PROCESSUS, practice. An order made, upon proper cause shown, that the
process remain stationary. As where a defendant having become insolvent
would, by moving judgment in the case of nonsuit, compel a plaintiff to
proceed, the court will, on an affidavit, of the fact of insolvency, award a
stet processus. See 7 Taunt. Rep. 180, 1 Chit. Rep. 738; 10 Wentw. Pl. 43.
STEVEDORE. A person employed in loading and unloading vessels. Dunl. Adm.
Pr. 98. Vide Arrameurs; Sac
STEWARD OF ALL ENGLAND. Seneschallus totius Angliae. An officer among the
English who was invested with various powers, and, among others, it was his
duty to preside on the trial of peers.
STEWS, Eng. law., Places formerly permitted in England to women of professed
lewdness, and who, for hire, would prostitute their bodies to all comers.
2. These places were so called because the dissolute persons who
visited them prepared themselves by bathing; the word stews being derived
from the old French estuves, stove, or hot bath. 3 Inst. 205.
STILLICIDIUM, civ. law. The rain water that falls from the roof or eaves of
a house by scattered drops. When it is gathered into a spout it is called
flumen.
2. Without the constitution of one or other of these servitudes, no
proprietor can build so as to throw the rain that falls from his house
directly on his neighbor's grounds; for it is a restriction upon all
property, nemo protest immitere in alienum; and he who in building breaks
through that restraint, truly builds on another man's property; because to
whomsoever the area belong's, to him also belongs whatever is above it:
cujus est solum, ejas est usque ad caelum. 3 Burge on the Conf. of Laws,
405. Vide Servitus Stillicidii. Inst. 3, 2, 1; Dig. 8, 2, 2.
STINT, Eng. law. The proportionable part of a man's cattle, which he may
keep upon the common.
2. To use a thing without stint, is to use it without limit.
STIPULATED DAMAGES, contracts. The sum agreed by the parties to be paid, on
a breach of a contract, by the party violating his engagement to the other.
2. It is difficult to distinguish, in some cases, between stipulated
damages and a penalty; (q.v.) 3 Chitty's Commer. Law, 627; 2 Bos. & Pull.
346. The effect of inserting stipulated damages, either at law or equity, a
pears to be, that both parties must abide by the stipulation, and the
prescribed sum must be given. Holt, C. N. P. 46 Newl. Contr. 313; see 5
Taunt. Rep. 247. Vide Damages, Liquidated.
STIPULATION, contracts. In the Roman law, the contract of stipulation was
made in the following manner, namely; the person to whom the promise was to
be made, proposed a question to him from whom it was to proceed, fully
expressing tho nature and extent of the engagement and, the question so
proposed being answered in the affirmative, the obligation was complete.
2. It was essentially necessary that both parties should speak, (so
that a dumb man could not enter into a stipulation) that the person making
the promise should answer conformably to the specific question, proposed,
without any material interval of time, and with the intention of contracting
an obligation.
3. From the general use of this mode of contracting, the term
stipulation has been introduced into common parlance, and, in modern
language, frequently refer's to any thing which forms a material article of
an agreement; though it is applied more correctly and more conformably to
its original meaning to denote the insisting upon and requiring any
particular engagement. 2 Evans' Poth. on Oblig. 19.
4. In this contract the Roman law dispensed with an actual
consideration. See, generally, Pothier, Oblig. P. 1, c. 1, s. 1, art. 5.
5. In the admiralty courts, the first process is frequently to arrest
the defendant, and then they take the recognizances or stipulation of
certain fide jussors in the nature of bail. 3 Bl. Comm. 108; vide Dunlap's
Adm. Practice, Index, h.t.
6. These stipulations are of three sorts, namely: l. Judicatum solvi,
by which the party is absolutely bound to pay such sum as may be adjudged by
the court. 2 De judico sisti, by which he is bound to appear from time to
time, during the pendency of the suit, and to abide the sentence. 3. De
ratio, or De rato, by which he engages to ratify the acts of his proctor:
this stipulation is not usual in the admiralty courts of the United States.
7. The securities are taken in the following manner, namely: 1. Cautio
fide jussoria, by sureties. 2. Pignoratitia; by deposit. 3. Juratoria, by
oath: this security is given when the party is too poor to find sureties, at
the discretion of the court. 4. Aude promissoria, by bare promise: this
security is unknown in the admiralty courts of the United States. Hall's
Adm. Pr. 12; Dunl. Adm. Pr. 150, 151. See 17 Am. Jur. 51.
STIRPES, descents. The root, stem, or stock of a tree. Figuratively, it
signifies, in law, that person from whom a family is descended, and also the
kindred or family.
2. It is chiefly used in estimating the several interests of the
different kindred, in the distribution of an intestate's estate. 2 Bl. Com.
517 and vide Descent; Line.
STOCK, mer. law. The capital of a merchant tradesman, or other person
including his merchandise, money and credits. In a narrower sense it
signifies only the goods and wares he has for sale and traffic. The capital
of corporations is also called stock; this is usually divided into shares of
a definite value, as one hundred dollars, fifty dollars per share.
2. The stock held by individuals in corporations is generally
considered as personal property. 4 Dane's Ab. 670; Sull. on Land. Titl. 71;
Walk. Introd. 211; 1 Hill, Ab. 1 8.
STOCK, descents. This is a metaphorical expression which designates, in the
genealogy of a family, the person from whom others are descended: those
persons who have so descended are called branches. Vide 1 Roper on Leg. 103;
2 Suppl. to Ves. 307 and Branch; Descent Line; Stirpes.
STOCKS, crim. law. A machine commonly made of wood, with boles in it, in
which to confine persons accused of or guilty of a crime.
2. It was used either to confine unruly offenders by way of security,
or convicted criminals for punishment.
3. This barbarous punishment has been generally abandoned in the United
States.
STOPPAGE IN TRANSITU, contracts. This is the name of that act of a vendor of
goods, upon a credit, who, on learning that the buyer has failed, resumes
the possession of the goods, while they are in the hands of a carrier or
middle-man, in their transit to the buyer, and before they get, into his
actual possession.
2. The subject will be considered with reference to, 1. The person who
has a right to stop goods in transitu. 2. The property which may be stopped.
3. The time when to be stopped. 4. The, manner of stopping. 5. The failure
of the buyer. 6. The effect of stopping.
3.-1. The right of stopping property in transitu is confined to cases
in which the consignor is substantially the seller; and does not extend to a
mere surety for the price, nor to any person who does not rest his claim on
a proprietor's right. 6 East, R. 371; 4 Burr. 2047; 3 T. R. 119, 783; 1
Bell's Com. 224.
4.-2. The property stopped must be personal property actually sold or
bartered, on a credit. 2 Dall. 180; 1 Yeates, 177.
5.-3. It must be stopped during the transit, and while something
remains to be done to complete the delivery; for the actual or symbolical,
delivery of the goods to the buyer puts an end to the right of the seller to
stop the goods in transitu; 3 T. R. 464; 8 T. R. 199; but it has been
decided that if, before delivery, the seller annex a condition that
security, shall be given before taking possession; or that the price shall
be paid in ready money; or that a bill shall be delivered; the property will
not pass by the mere act of the buyer's attaining the possession. 3 Esp.
Rep. 58., When the seller has given the buyer documents sufficient to
transfer the property, and the buyer, upon the strength of such documents,
has sold the goods to a bona fide purchaser without notice, the seller is
divested of his rights 2 W. C. C. R. 283; but a resale by the buyer does
not, of itself, and without other circumstances, destroy the vendor's right
of stoppage in transitu. 6 Taunt. R. 433 Vide Delivery; and 1 Rawle's R. 9;
1 Ashm. R. 103; Harr. Dig. Sale, III. 4; 7 Taunt. R. 59; 2 Marsh. R. 366;
Holt's R. 248; 1 Moore's R. 526; 3 B. & P. 320; Id. 119; 5 East, R. 175.
6.-4 The manner of stopping the goods is usually by taking corporal
possession of them; but this is not the only way it may be done; the seller
may put in his claim or demand of his right to the goods either verbally or
in writing. 2 B. & P. 257, 462; 2 Esp. R. 613; Co. Bankr. Law, 494; Holt's
Cases, N. B. 338. Vide Corporal Touch.
7.-5. The buyer must have actually failed, or be in actual and
immediate danger of insolvency.
8.-6. The stopping of goods in transitu does not of itself rescind the
contract. 1 Atk. 245; Co. B. L. 394; 6 East, R. 27, n. The seller may,
therefore, upon offering to deliver them, recover the price. 1 Campb. 109; 6
Taunt. 162. But inasmuch as the seller is permitted in equity to annul the
transfer he has made, by stopping the goods on their transit, and by that
means to deprive the general creditors of the buyer of property, which, in
strict law, has passed to their debtor, it has been considered as equitable,
on the other hand, that this act should be accompanied by a rescinding of
the whole contract, and a renunciation of any further claim; since it would
be a great hardship to give a preference to the seller over, the other
creditors; and subject the divisible funds, which have derived no benefit
from the contract, to a further claim of indemnification. 1 Bell's Com. B.
2, pt. 3, c. 2, s. 2, Sec. 5.
Vide, generally, 2 Kent, Com. 427; Bac. Abr. Merchant, L; Ross on
Vend., Index, h.t. Selw. N. P. 1206; Whitaker on Stoppage in Transitu;
Abbott on Ship. 351; 3 Chit. Com. Law, 340; Chit. on Contr. 124-126; 2 Com.
Dig. 268; 8 Com. Dig. 952; 2 Supp. to Ves. jr. 231, 481; 2 Leigh's N. P.
1472; 1 Bouv. Inst. n. 959-65.
STORES. the victuals and provisions collected together for the subsistence
of a ship's company, of a camp, and the like.
STOUTHRIEFF, Scotch law. Formerly this word included in its signification
every species of theft, accompanied with violence to the person; but of late
years it has become the vox signata for forcible and masterful depredation
within or near the dwelling house; while robbery has been more particularly
applied to violent depredation on the highway, or accompanied by house-
breaking. Alison, Princ. Cr. Law of Scot]. 227.
STOWAGE, mar. law. The proper arrangement in a ship, of the different
articles of which a cargo consists, so that they may not injure each other
by friction, or be damaged by the leakage of the ship.
2. The master of the ship is bound to attend to the stowage, unless, by
custom or agreement, this business is to be performed by persons employed by
the merchant. Abbott on Ship. 228; Pardes. Dr. Com. n. 721.
STRANDING, maritime law. The running of a ship or other vessel on shore; it
is either accidental or voluntary.
2. It is accidental where the ship is driven on, shore by the winds and
waves; it is voluntary where she is run on shore, either to preserve her
from a worse fate, or for some fraudulent purpose. Marsh. Ins. B. 1, c. 12,
s. 1.
3. It is of great consequence to define accurately what shall be deemed
a stranding, but this is no easy matter. In one case a ship having run on
some wooden piles, four feet under water, erected in Wisbeach river, about
nine yards from shore, which were placed there to keep up the banks of the
river, and having remained on these piles until they were cut away, was
considered by Lord Kenyon to have been stranded. Marsh. Ins. B. 7, s. 3. In
another case, a ship arrived in the river Thames, and, upon coming up to the
Pool, which was full of vessels, one brig ran foul of her bow, and another
of her stern, in consequence of which she was driven aground, and continued
in that situation an hour, during which period several other vessels ran
foul of her; this, Lord Kenyon told the jury, that unskilled as he was in
nautical affairs, he thought he could safely pronounce to be no stranding.
lb.; 1 Camp. 131; 3 Camp. 431; 4 M. & S. 503; 7 B. & C. 224; 5 B. & A. 225;
4 B. & C. 736. See Perils of the Sea.
STRANGER, persons, contracts. This word has several significations. 1. A
person born out of the United States; but in this sense the term alien is
more properly applied, until he becomes naturalized. 2. A person who is not
privy to an act or contract; example, he who is a stranger to the issue,
shall not take advantage of the verdict. Bro. Ab. Record, pl. 3; Vin. Ab.
h.t. pl. 1 and vide Com. Dig. Abatement, H 54.
2. When a man undertakes to do a thing, and a stranger interrupts him,
this is no excuse. Com. Dig. Condition, L 14. When a party undertakes that a
stranger shall do a certain thing, he becomes liable as soon as the stranger
refuses to perform it. Bac. Ab. Conditions, Q 4.
STRATAGEM. A deception either by words or actions, in times of war, in order
to obtain an advantage over an enemy.
2. Such stratagems, though contrary to morality, have been justified,
unless they have been accompanied by perfidy, injurious to the rights of
humanity, as in the example given by Vattel of an English frigate, which
during a war between France and England, appeared off Calais and made
signals of distress in order to allure some vessel to come to its relief,
and seized a shallop and its crew, who had generously gone out to render it
assistance. Vattel, Droit des Gens, liv. 3, c. 9, Sec. 178.
3. Sometimes stratagems are employed in making, contracts, this is
unlawful and fraudulent, and avoids the contract. See Fraud.
STRATOCRACY. A military government; government by military chiefs of an
army.
STREAM. A current of water. The right to a water course is not a right in
the fluid itself so much as a right in the current of the stream. 2 Bouv.
Inst. n. 1612. See River; Water Course.
STREET. A road in a village or city. In common parlance the word street is
equivalent to highway. 4 Serg. & Rawle, 108.
2. A permission to the public for the space of eight, or even of six
years, to use a street without bar or impediment, is evidence from which a
dedication to the public maybe inferred. 11 East, R. 376; See 2 N. Hamp.
513; 4 B. & A. 447; 3 East, R. 294; 1 Law Intell. 134; 2 Smith's Lead. Cas.
94, n.; 2 Pick. R. 162; 2 Verm. R. 480; 5 Taunt. R. 125; S. C. 1 E. C. L. R.
34; 4 Camp. R. 169; 1 Camp. R. 260: 7 B. & C. 257; S. C. 14 E. C. L. R. 39;
5 B & Ald. 454; S. C. 7 E. C. L. R. 159; 1 Blackf. 44; 2 Wend. 472; 8 Wend.
85; 11 Wend. 486; 6 Pet. 431; 1 Paige, 510; and the article Dedication.
STRICT SETTLEMENT. When lands are settled to the parent for life, and after
his death to his first and other sons in tail, and trustees are interposed
to preserve the contingent remainders, this is called a strict settlement.
STRICTISSIMI JURIS. The most strict right or law. In general, when a person
receives an advantage, as the grant of a license, he is bound to conform
strictly to the exercise of the rights given him by it, and in case of a
dispute, it will be strictly construed. See 3 Story, Rep. 159.
STRICTUM JUS. This phrase is used to denote mere law, in contradistinction
to equity.
STRUCK, pleadings. In an indictment for murder, when the death arises from
any wounding, beating or bruising, it is said, that the word "struck" is
essential. 1 Bulst. 184; 5 Co. 122; 3 Mod. 202; Cro. Jac. 655; Palm. 282; 2
Hale, 184, 6, 7: Hawk. B. 2, c. 23, s. 82; 1 Chit. Cr. Law, *243 6 Binn. R.
179.
STRUCK JURY. A special jury selected by striking from the panel of jurors, a
certain number by each party, so as to leave a number required by law to try
the cause. In general, a list of forty-eight jurors is made out for each
case; the plaintiff strikes off twelve, and the defendant the same number
from those who remain twelve are to be selected to try the cause, unless
they are challenged for cause. See Challenge.
STRUCK OFF. A case is said to be struck off, where the court has no
jurisdiction, and can give no judgment, and order that the case be taken off
the record, which is done by an entry to that effect.
STRUMPET. A harlot, or courtesan: this word was formerly used as an
addition. Jacob's Law Dict. h.t.
TO STULTIFY. To make or declare insane. It is a general rule in the English
law, that a man shall not be permitted to stultify himself; that is, he
shall not be allowed to plead his insanity to avoid a contract. 2 Bl. Com.
291; Fonb. Eq. b. 1, c. 2, 1; Pow. on Contr. 19.
2. In the United States, this rule seems to have been exploded, and the
party may himself avoid his acts except those of record, and contracts for
necessaries and services rendered, by allegation and proof of insanity. 5
Whart. R. 371, 379; 2 Kent, Com. 451; 3 Day, R. 90; 3 Conn. R. 203: 5 Pick.
R. 431; 5 John R. 503.; 1 Bland. R. 376. Vide Fonb. Eq b. 1, c. 2, Sec. 1,
note 1; 2 Str. R. 1104; 3 Camp. R. 125; 7 Dowl. & Ryl. 614; 3 C. & P. 30; 1
Hagg. C. R. 414.
STUPIDITY, med. jur. That state of the mind which cannot perceive and
embrace the data presented to it by the senses; and therefore the stupid
person can, in general, form no correct judgment. It is a want of the
perceptive powers. Ray, Med. Jur. c. 3, Sec. 40. Vide Imbecility.
STUPRUM, civ. law. The criminal sexual intercourse which took place between
a man and a single woman, maid or widow, who before lived honestly. Inst. 4,
18, 4; Dig. 48, 5, 6; Id. 50, 16, 101; 1 Bouv. Inst. Theolo. ps. 3, quaest.
2, art. 2, p. 252.
SUB-AGENT. A person appointed by an agent to perform some duty, or the whole
of the business relating to his agency.
2. Sub-agents may be considered in two points of view. 1. With regard
to their rights and duties or obligations, towards their immediate
employers. 2. As to their rights and obligations towards their superior or
real principals.
3.-1. A sub-agent is generally invested with the same rights, and
incurs the same liabilities in regard to his immediate employers, as if he
were the sole and real principal. To this general rule there are some
exceptions for example, where by the general usage of trade or the agreement
of the parties, sub-agents are ordinarily or necessarily employed, to
accomplish the ends of the agency, there, if the agency is avowed, and the
credit is exclusively given to the principal, the intermediate agent may be
entirely exempted from all liability to the sub-agent. The agent, however,
will be liable to the sub-agent, unless such exclusive credit has been
given, although the real principal or superior may also be liable. Story on
Ag. Sec. 386; Paley on Ag. by Lloyd, 49. When the agent employs a sub-agent
to do the whole, or any part of the business of the agency, without the
knowledge or consent of his principal, either express or implied, the latter
will only be entitled to recover from his immediate employer, and his sole
responsibility is also to him. In this case the superior or real principal
is not responsible to the sub-agent, because there is no privity between
them. Story on Ag. Sec. 13, 14, 15, 217, 387.
4.-2. Where by an express or implied agreement of the parties, or by
the usages of trade, a sub-agent is to be employed, a privity exists between
the principal and the sub-agent, and the latter may justly maintain his
claim for compensation, both against the principal and his immediate
employer, unless exclusive credit is given to one of them; and, in that
case, his remedy is limited to that party. 1 Liv. on Ag. 64; 6 Taunt. R.
147.
SUBALTERN. A kind of officer who exercises his authority under the
superintendence and control of a superior.
TO SUBDIVIDE. To divide a part of a thing which has already been divided.
For example, when a person dies leaving children, and grandchildren, the
children of one of his own who is dead, his property is divided into as many
shares as he had children, including the deceased, and the share of the
deceased is subdivided into as many shares as he had children.
SUBINFEUDATION, estates, English law. The act of an inferior lord by which
he carved out a part of an estate which he held of a superior, and granted
it to an inferior tenant to be held of himself.
2. It was an indirect mode of transferring the fief, and resorted to as
an artifice to elude the feudal restraint upon alienation: this was
forbidden by the statute of Quia Emptores, 18 Ed. I; 2 Bl. Com. 91; 3 Kent,
Com. 406.
SUBJECT, contracts. The thing which is the object of an agreement. This term
is used in the laws of Scotland.
SUBJECT, persons, government. An individual member of a nation, who is
subject to the laws; this term is used in contradistinction to citizen,
which is applied to the same individual when considering his political
rights.
2. In monarchical governments, by subject is meant one who owes
permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. Sec.
286; Phil. & Am. on Ev. 732, n. 1.
SUBJECT-MATTER. The cause, the object, the thing in dispute.
2. It is a fatal objection to the jurisdiction of the court when it has
not cognizance of the subject-matter of the action; as, if a cause
exclusively of admiralty jurisdiction were brought in a court of common law,
or a criminal proceeding in a court having jurisdiction of civil cases only.
10 Co. 68, 76 1 Ventr. 133; 8 Mass. 87; 12 Mass. 367. In such case, neither
a plea to the jurisdiction, nor any other plea would be required to oust the
court of jurisdiction. The cause might be dismissed upon motion, by the
court, ex officio.
SUBJECTION. The obligation of one or more persons to act at the discretion,
or according to the judgment and will of others.
2. Subjection is either private or public. By the former is meant the
subjection to the authority of private persons; as, of children to their
parents, of apprentices to their masters, and the like. By the latter is
understood the subjection to the authority of public persons. Rutherf. Inst.
B. 2, c. 8.
SUBLEASE. A lease by a tenant to another tenant of a part of the premises
held by him; an underlease.
SUBMISSION. A yielding to authority. A citizen is bound to submit to the
laws; a child to his parents; a servant to his master. A victor may enforce,
the submission of his enemy.
2. When a captor has taken a prize, and the vanquished have submitted
to his authority, the property, as between the belligerents, has been
transferred. When there is complete possession on one side, and submission
upon the other, the capture is complete. 1 Gallis. R. 532.
SUBMISSION, contracts. An agreement by which persons who have a law suit or
difference with one another, name arbitrators to decide the matter, and bind
themselves reciprocally to perform what shall be arbitrated.
2. The submission may be by the act of the parties simply, or through
the medium of a court of law or equity. When it is made by the parties alone
it may be in writing or not in writing. Kyd on Aw. 11; Caldw. on Arb. 16; 6
Watts' R. 357. When it is made through the medium of a court, it is made a
matter of record by rule of court. The extent of the submission may be
various, according to the pleasure of the parties; it may be of only one, or
of all civil matters in dispute, but no criminal matter can be referred. It
is usual to put in a time within which the arbitrators shall pronounce their
award. Caldw. on Arb. ch. 3; Kyd on Awards, ch. 1; Civ. Code of Lo. tit. 19
3 Vin. Ab. 131; 1 Supp. to Ves. jr. 174; 6 Toull. n. 827; 8 Toull. n. 332;
Merl. Repert. mot Compromis; 1 S. & R. 24; 5 S. & R. 51; 8 S. & R. 9; 1
Dall. 164; 6 Watts, R. 134; 7 Watts, R. 362; 6 Binn. 333, 422; 2 Miles, R,
169; 3 Bouv. Inst. n. 2483, et seq.
SUB MODO. Under a qualification; a legacy may be given sub modo, that is,
subject to a condition or qualification.
SUBNOTATIONS, civ. law. The answers of the prince to questions which had
been put to him respecting some obscure or doubtful point of law. Vide
Rescripts.
SUBORNATION OF PERJURY, crim. law. The procuring another to commit legal
perjury, who in consequence of the persuasion takes the oath to which be has
been incited. Hawk. B. 1, c. 69, s. 10.
2. To complete the offence, the false oath must be actually taken, and
no abortive attempt (q.v.) to solicit will complete the crime. Vide To
Dissuade; To persuade.
3. But the criminal solicitation to commit perjury, though
unsuccessful, is a misdemeanor at common law. 2 East, Rep. 17; 6 East, R.
464; 2 Chit. Crim. Law, 317; 20 Vin. Ab. 20. For a form of an indictment for
an attempt to suborn a person to commit perjury, vide 2 Chit. Cr. Law, 480;
Vin. Ab. h.t.
4. The act of congress of March 3, 1825, Sec. 13, provides, that if any
person shall knowingly or willfully procure any such perjury, mentioned in
the act, to be committed, every such person so offending, shall be guilty of
subornation of perjury, and shall, on conviction thereof, be punished by
fine, not exceeding two thousand dollars, and by imprisonment and
confinement to hard labor, not exceeding five years, according to the
aggravation of the offence.
SUBPOENA, practice, evidence. A process to cause a witness to appear and
give testimony, commanding him to lay aside all pretences and excuses, and
appear before a court or magistrate therein named, at a time therein
mentioned, to testify for the party named, under a penalty therein
mentioned. This is usually called a subpoena ad testificandum.
2. On proof of service of a subpoena upon the witness, and that he, is
material, an attachment way be issued against him for a contempt, if he
neglect to attend as commanded.
SUBPOENA, chancery practice. A mandatory writ or process, directed to and
requiring one or more persons to appear at a time to come, and answer the
matters charged against him or them; the writ of subpoena was originally a
process in the courts of common law, to enforce the attendance of a witness
to give evidence; but this writ was used in the court of chancery for the
game purpose as a citation in the courts of civil and canon law, to compel
the appearance of a defendant, and to oblige him to answer upon oath the
allegations of the plaintiff.
2. This writ was invented by John Waltham, bishop of Salisbury, and
chancellor to Rich. II. under the authority of the statutes of Westminster
2, and 13 Edw. I. c. 34, which enabled him to devise new writs. 1 Harr.
Prac. 154; Cruise, Dig. t. 11, c. 1, sect. 12-17. Vide Vin. Ab. h.t.; 1
Swanst. Rep. 209.
SUBPOENA DUCES TECUM, practice. A writ or process of the same kind as the
subpoena ad testificandum, including a clause requiring the witness to bring
with him and produce to the court, books, papers, &c., in his hands, tending
to elucidate the matter in issue. 3 Bl. Com. 382.
SUB PEDE SIGILLI. Under the foot of the seal; under seal. This expression is
used when it is required that a record should be certified under the seal of
the court.
SUB POTESTATE. Under or subject to the power of another; as, a wife is under
the power of her husband; a child subject to that of his father; a slave to
that of his master.
SUBREPTION, French law. By this word is understood the fraud committed to
obtain a pardon, title, or grant, by alleging facts contrary to truth.
SUBROGATION, civil law, contracts. The act of putting by a transfer, a
person in the place of another, or a thing in the place of another thing. It
is the substitution (q.v.) of a new for an old creditor, and the succession
to his rights, which is called subrogation; transfusio unius creditoris in
alium. It is precisely the reverse of delegation. (q.v.)
2. There are three kinds of subrogation: 1. That made by the owner of a
thing of his own free will; example, when be voluntarily assigns it. 2. That
which arises in consequence of the law, even without the consent of the
owner; example, when a man pays a debt which could not be properly called
his own, but which nevertheless it was his interest to pay, or which he
might have been compelled to pay for another, the law subrogates him to all
the rights of the creditor. Vide 2 Binn. Rep. 382; White's L. C. in Eq.* 60-
72. 3. That which arises by the act of law joined to the act of the debtor;
as, when the debtor borrows money expressly to pay off his debt, and with
the intention of substituting the lender in the place of the old creditor. 7
Toull. liv. 3, t. 3, c. 5, sect. 1, Sec. 2. Vide Civ. Code of Louisiana,
art. 2155 to 2158; Merl. Repert. h.t.; Dig. lib. 20; Code, lib. 8, t. 18 et
19 9 Watts. R. 451; 6 Watts & Serg. 190; 2 Bouv. Inst. n. 1413.
SUBSCRIBING WITNESS. One who subscribes his name to a writing in order to be
able at a future time to prove its due execution; an attesting witness.
2. In order to make a good subscribing witness, it is requisite he
Should sign his name to the instrument himself, at the time of its
execution, and at the request or with the assent of the party. 6 Hill, N. Y.
R. 303; 11 M. & W. 168; 1 Greenl. Ev. Sec. 569 a, 4th ed. See Witness
instrumentary; 5 Watts, 399.
SUBSCRIPTION, contracts. The placing a signature at the bottom of a written
or printed engagement; or it is the attestation of a witness by so writing
his name; but it has been holden that the attestation of an illiterate
witness, by making his mark, is a sufficient subscription. 7 Bing. 457; 2
Ves. 454; Atk. 177; 1 Yes. jr. 11; 3 P. Wms. 253; 1 V. & B. 362. Vide To
sign.
2. By subscription is also understood the act by which a person
contracts, in writing, to furnish a sum of money for a particular purpose;
as, a subscription to a charitable institution, a subscription for a book,
for a newspaper, and the like.
SUBSCRIPTION LIST. The names of persons who have agreed to take a newspaper,
magazine or other publication, placed upon paper, is a subscription list.
2. This is, an incident to a newspaper, and passes with the sale of the
printing materials. 2 Watts, 111.
SUBSIDY, Eng. law. An aid, tax or tribute granted by parliament to the king
for the urgent occasions of the kingdom, to be levied on every subject of
ability, according to the value of his lands or goods. Jacob's Law. Dict.
h.t.
2. The assistance given in money by one nation to another to enable it
the better to carry on a war, when such nation does not join directly in the
war, is called a subsidy. Vattel, liv. 3, Sec. 82. See Neutrality.
SUB SILENTIO. Under silence, without any notice being taken. Sometimes
passing a thing sub silentio is evidence of consent. See Silence.
SUBSTANCE, evidence. That which is essential; it is used in opposition to
form.
2. It is a general rule, that on any issue it is sufficient to prove
the substance of the issue. For example, in a case where the defendant
pleaded payment of the principal sum and all interest due, and it appeared
in evidence that a gross sum was paid, not amounting to the full interest,
but accepted by the plaintiff as full payment, the proof was held to be
sufficient. 2 Str. 690; 1 Phil. Ev. 161.
SUBSTITUTE, contracts. One placed under another to transact business for
him; in letters of attorney, power is generally given to the attorney to
nominate and appoint a substitute.
2. Without such power, the authority given to one person cannot in
general be delegated to another, because it is a personal trust and
confidence, and is not therefore transmissible. The authority is given to
him to exercise his judgment and discretion, and it cannot be said that the
trust and confidence reposed in him shall be exercised at the discretion of
another. 2 Atk. 88; 2 Ves. 645. But an authority may be delegated to
another, when the attorney has express power to do so. Bunb. 166; T. Jones,
110. See Story, Ag. Sec. 13, 14. When a man is drawn in the militia, he may
in some cases hire a substitute.
SUBSTITUTES, Scotch law. Where an estate is settled on a long series of
heirs, substituted one after another, in tailzie, the person first called in
the tailzies, is the institute; the rest, the heirs of tailzie; or the
substitutes. Ersk. Princ. L. Scotl. 3, 8, 8. See Tailzie; Institute.
SUBSTITUTION, civil law. In the law of devises, it is the putting of one
person in the place of another, so that he may, in default of ability in the
former, or after him, have the benefit of a devise or legacy.
2. It is a species of subrogation made in two different ways; the first
is direct substitution, and the latter a trust or fidei commissary
substitution. The first or direct substitution, is merely the institution of
a second legatee, in case the first should be either incapable or unwilling
to accept the legacy; for example, if a testator should give to Peter his
estate, but in case he cannot legally receive it, or he willfully refuses
it, then I give it to Paul; this is a direct substitution. Fidei commissary
substitution is that which takes place when the person substituted is not to
receive the legacy until after the first legatee, and consequently must
receive the thing bequeathed from the hands of the latter for example, I
institute Peter my heir, and I request that at his death he shall deliver my
succession to Paul. Merl. Repert. h.t.; 5 Toull. 14.
SUBSTITUTION, chancery practice. This takes place in a case where a creditor
has a lien on two different parcels of land, and another creditor has a
subsequent lien on one only of the parcels, and the prior creditor elects to
have his whole demand out of the parcel of land on which the subsequent
creditor takes his lien; the latter is entitled, by way of substitution, to
have the prior lien assigned to him for his benefit. 1 Johns. Ch. R. 409; 2
Hawk's Rep. 623; 2 Mason, R. 342. And in a case where a bond creditor exacts
the whole of the debt from one of the sureties, that surety is entitled to
be substituted in his place, and to a cession of his rights and securities,
as if be were a purchaser, either against the principal or his co-sureties.
Id. 413; 1 Paige's R. 185; 7 John. Ch. Rep. 211; 10 Watts, R. 148.
2. A surety on paying the debt is entitled to stand in the place of the
creditor and to be subrogated to all his rights against the principal. 2
Johns. Ch. R. 454. 4 Johns. Ch. R. 123; 1 Edw. R. 164; 7 John. R. 584; 3
Paige's R. 117; 2 Call, R. 125; 2 Yerg. R. 346; 1 Gill & John. 346; 6 Rand.
R. 98,; 8 Watts, R. 384. In Pennsylvania it is provided by act of assembly,
that in all cases where a constable shall be entrusted with the execution of
any process for the collection of money, and by neglect of duty shall fail
to collect the same, by means whereof the bail or security of such constable
shall be compelled to pay the amount of any judgment shall vest in the
person paying, as aforesaid, the equitable interest in such judgment, and
the amount due upon any such judgment may be collected in the name of the
plaintiff for the use of such person. Pamphlet Laws, 1828-29, p. 370. Vide 2
Binn. R. 382, and Subrogation.
SUBSTRACTION, French law. The act of taking something fraudulently; it is
generally applied to the taking of the goods of the estate of a deceased
person fraudulently. Vide Expilation.
SUB-TENANT. The same as under-tenant. See Under-leaser; Under-tenant, and 1
Bell's Com. 76.
SUBTRACTION. The act of withholding or detaining anything unlawfully.
SUBTRACTION OF CONJUGAL RIGHTS. The act of a husband or wife by living
separately from the other without a lawful cause. 3 Bl. Com. 94.
SUCCESSION, in Louisiana. The right and transmission of the rights an
obligations of the deceased to his heirs. Succession signifies also the
estate, rights and charges which a person leaves after his death, whether
the property exceed the charges, or the charges exceed the property, or
whether he has left only charges without property. The succession not only
includes the rights and obligations of the deceased, as they exist at the
time of his death, but all that has accrued thereto since the opening of the
succession, as also of the new charges to which it becomes subject. Finally,
succession signifies also that right by which the heir can take possession
of the estate of the deceased, such as it may be.
2. There are three sorts of successions, to wit: testamentary
succession; legal succession; and, irregular succession. 1. Testamentary
succession is that which results from the constitution of the heir,
contained in a testament executed in the form prescribed by law. 2. Legal
succession is that which is established in favor of the nearest relations of
the deceased. 3. Irregular succession is that which is established by law in
favor of certain persons or of the state in default of heirs either legal or
instituted by testament. Civ. Code, art. 867-874.
3. The lines of a regular succession are divided into three, which rank
among themselves in the following order: 1. Descendants. 2. Ascendants. 3.
Collaterals. See Descent. Vide Poth. Traite des Successions Ibid. Coutumes
d'Orleans, tit. 17 Ayl. Pand. 348; Toull. liv. 3, tit. 1; Domat, h.t.; Merl.
Repert. h.t.
SUCCESSION, com. law. The mode by which one set of persons, members of a
corporation aggregate, acquire the rights of another set which preceded
them. This term in strictness is to be applied only to such corporations. 2
Bl. Com. 430.
SUCCESSOR. One who follows or comes into the place of another.
2. This term is applied more particularly to a sole corporation, or to
any corporation. The word heir is more correctly applicable to a common
person who takes an estate by descent. 12 Pick. R. 322; Co. Litt. 8 b.
3. It is also used to designate a person who has been appointed or
elected to some office, after another person.
TO SUE. To prosecute or commence legal proceedings for the purpose of
recovering a right.
SUFFRAGE, government. Vote; the act of voting.
2. The right of suffrage is given by the constitution of the United
States, art. 1, s. 2, to the electors in each state, as shall have the
qualifications requisite for electors of the most numerous branch of the
state legislature. Vide 2 Story on the Const. Sec. 578, et seq.; Amer.
Citiz. 201; 1 Bl. Com. 171; 2 Wils. Lect. 130; Montesq. Esp. des Lois, Ii v.
11, c. 6; 1 Tucker's Bl. Com. App. 52, 3. See Division of opinion.
SUFFRANCE. The permitting a tenant who came in by a lawful title, to remain
after his right has expired. Vide Estates at suffrance.
SUGGESTIO FALSI. A statement of a falsehood. This amounts to a fraud
whenever the party making it was bound to disclose the truth.
2. The following is an example of a case where chancery will interfere
and. set aside a contract as fraudulent, on account of the suggestio falsi:
a purchaser applied to the seller to purchase a lot of wild land, and
represented to him it was worth nothing, except for a sheep pasture, when he
knew there was a valuable mine on the lot, of which the seller was ignorant.
The sale was set aside. 2 Paige, 390; 4 Bouv. Inst. n. 3837, et seq. Vide
Concealment; Misrepresentation; Representation; Suppressio veri.
SUGGESTION. In its literal sense this word signifies to inform, to
insinuate, to instruct, to cause to be remembered, to counsel. In practice
it is used to convey the idea of information; as, the defendant suggests the
death of one of the plaintiffs. 2 Sell. Pr. 191.
2. In wills, when suggestions are made to a testator for the purpose of
procuring a devise of his property in a particular way, and when such
suggestions are false, they generally amount to a fraud. Bac. Ab. Wills, G
3; 5 Toull. n. 706.
SUGGESTIVE INTERROGATION. This phrase has been used by some writers to
signify the same thing as leading question. (q.v.) 2 Benth. on Ev. b. 3, c.
3. It is used in the French law. Vide Question.
SUI JURIS. One who has all the rights to which a freemen is entitled; one
who is not under the power of another, as a slave, a minor, and the like.
2. To make a valid contract, a person must, in general, be sui juris.
Every one of full age is presumed to be sui juris. Story on Ag. p. 10.
SUICIDE, crimes, med. jur. The act of malicious self-murder; felo de se.
(q.v.) 3 Man. Gran. & Scott, 437, 457, 458; 1 Hale, P. C.. 441. But it has
been decided in England that where a man's life was insured, and the policy
contained a proviso that "every policy effected by a person on his or her
own life should be void, if such person should commit suicide, or die by
duelling or the hands of justice," the terms of the condition included all
acts of voluntary self-destruction, whether the insured at the time such act
was committed, was or was not a moral responsible agent. 3 Man. Gr. & Scott,
437. In New York it has been held, that an insane person cannot commit
suicide, because. such person has no will. 4 Hill' 3 R. 75.
2. It is not punishable it is believed in any of the United States, as
the unfortunate object of this offence is beyond the reach of human
tribunals, and to deprive his family of the property he leaves would be
unjust.
3. In cases of sudden death, it is of great consequence to ascertain,
on finding the body, whether the deceased has been murdered, died suddenly
of a natural death, or whether he has committed suicide. By a careful
examination of the position of the body, and of the circumstances attending
it, it can be generally ascertained whether the deceased committed suicide,
was murdered, or died a natural death. But there are sometimes cases of
suicide which can scarcely be distinguished from those of murder. A case of
suicide is mentioned by Doctor Devergie, (Annales d'Hygiene, transcribed by
Trebuchet, Jurisprudence de la Medecine, p. 40,) which bears a striking
analogy to a murder. The individual went to the cemetery of Pere la Chaise,
near Paris, and with a razor inflicted a wound on himself immediately below
the oshyoide; the first blow penetrated eleven lines in depth; a second, in
the wound made by the first, pushed the instrument to the depth of twenty-
one lines; a third extended as far as the posterior of the pharynx, cutting
the muscles which attached the tongue to the oshyoide, and made a wound of
two inches in depth. Imagine an enormous wound, immediately under the chin,
two inches in depth, and three inches and three lines in width, and a foot
in circumference; and then judge whether such wound could not be easily
mistaken as having been made by a stranger, and not by the deceased. Vide
Death, and 1 Briand, Med. Leg. 2e partie, c. 1, art. 6.
SUIT. An action. The word suit in the 25th section of the judiciary act of
1789, applies to any proceeding in a court of justice, in which the
plaintiff pursues, in such court, the remedy which the law affords him. An
application for a prohibition is therefore a suit. 2 Pet. 449. According to
the code of practice of Louisiana, art. 96, a suit is a real, personal or
mixed demand, made before a competent judge, by which the parties pray to
obtain their rights, and a decision of their disputes. In that acceptation,
the words suit, process and cause, are in that state almost synonymous. Vide
Secta, and Steph. Pl. 427; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399;
Wood's Civ. Law, b. 4, c. p. 315; 4 Mass. 263; 18 John. 14; 4 Watts, R. 154;
3 Story, Const. Sec. 1719. In its most extended sense, the word suit,
includes not only a civil action, but also a criminal prosecution, as
indictment, information, and a conviction by a magistrate. Ham. N. P. 270.
SUITE. Those persons, who by his authority, follow or attend an ambassador
or other public minister.
2. In general the suite of a minister are protected from arrest, and
the inviolability of his person is communicated to those who form his suite.
Vattel, lib. 4, c. 9, Sec. 120. See 1 Dall. 177; Baldw. 240; and Ambassador.
SUITOR. One who is a party to a suit or action in court. One who is a party
to an action. In its ancient sense, suitor meant one Who was bound to attend
the county court, also, one who formed part of the secta. (q.v.)
SULTAN. The title of the Turkish sovereign and other Mahometan princes.
SUMMARY PROCEEDINGS. When cases are to be adjudged promptly, without any
unnecessary form, the proceedings are said to be summary.
2. In no case can the party be tried summarily unless when such
proceedings are authorized by legislative authority, except perhaps in the
cases of contempts, for the common law is a stranger to such a mode of
trial. 4 Bl. Com. 280; 20 Vin. Ab. 42; Boscawen on Conv.; Paley on Convict.;
vide Convictions.
SUMMING UP, practice. The act of making a speech before a court and jury,
after all the evidence has been heard, in favor of one of the parties in the
cause, is called summing up. When the judge delivers his charge to the jury,
he is also said to sum up the evidence in the case. 6 Harg. St. Tr. 832; 1
Chit. Cr. Law, 632.
2. In summing up, the judge should, with much precision and clearness,
state the issues joined between the parties, and what the jury are required
to find, either in the affirmative or negative. He should then state the
substance of the plaintiff's claim and of the defendant's ground of defence,
and so much of the evidence as is adduced for each party, pointing out as he
proceeds, to which particular question or issue it respectively applies,
taking care to abstain as much as possible from giving an opinion as to the
facts. It is his duty clearly to state the law arising in the case in such
terms as to leave no doubt as to his meaning, both for the purpose of
directing the jury, and with a view of correcting, on a review of the case
on a motion for a new trial, or on a writ of error, any error he may, in the
hurry of the trial, have committed. Vide 8 S. & R. 150; 1 S. & R. 515; 4
Rawle, R. 100, 195, 356; 2 Penna. R. 27; 2 S. & R. 464. Vide Charge;
Opinion, (Judgment.)
TO SUMMON, practice. The act by which a defendant is notified by a competent
officer, that an action has been instituted against him, and that he is
required to answer to it at a time and place named. This is done either by
giving the defendant a copy of the summons, or leaving it at his house; or
by reading the summons to him.
SUMMONERS. Petty officers who cite men to appear in any court.
SUMMONS, practice. The name of a writ commanding the sheriff, or other
authorized officer, to notify a party to appear in court to answer a
complaint made against him and in the said writ specified, on a day therein
mentioned. 21 Vin. Ab. 42 2 Sell. Pr. 356; 3 Bl. Com. 279.
SUMMONS AND SEVERANCE. Vide Severance; and 20 Vin. Ab. 51; Bac. Ab. h.t.;
Archb. Civil Plead. 59.
SUMMUM JUS. Extreme right, strict right. It is seldom that extreme right can
be administered without the danger of doing injustice, for extreme right may
produce extreme wrong. Summum jus, summa injuria.
SUMPTUARY LAWS. Those relating to expenses, and made to restrain excess in
apparel.
2. In the United States the expenses of every man are left to his own
good judgment, and not regulated by Arbitrary laws.
SUNDAY. The first day of the week.
2. In some of the New England states it begins at sun setting on
Saturday, and ends at the same time the next day. But in other parts of the
United States, it generally commences at twelve o'clock on the night between
Saturday and Sunday, and ends in twenty-four hours thereafter. 6, Gill. &
John. 268; and vide Bac. Ab. Heresy, &c. D; Id. Sheriff, N 4; 1 Salk. 78; 1
Sell. Pr. 12; Hamm. N. P. 140. The Sabbath, the Lord's Day, and Sunday, all
mean the same thing. 6 Gill. & John. 268; see 6 Watts, 231; 3 Watts, 56, 59.
2. In some states, owing to statutory provisions, contracts made on
Sunday are void; 6 Watts, R. 231; Leigh, N. P. 14; 1 P. A. Browne, 171; 5 B.
& C. 406; 4 Bing. 84; but in general they are binding, although made on that
day, if good in other respects. 1 Crompt. & Jervis, 130; 3 Law Intell. 210;
Chit. on Bills, 59; Wright's R. 764;,10 Mass. 312 1 Cowen, R. 76, n.; Cowp.
640; 1 Bl. Rep. 499; 1 Str. 702; see 8 Cowen, R. 27; 6 Penn. St. R. 417,
420.
4. Sundays are computed in the time allowed for the performance of an
act, but if the last day happen to be a Sunday, it is to be excluded, and
the act must in general be performed on Saturday; 3 Penna. R. 201; 3 Chit.
Pr. 110; promissory notes and bills of exchange, when they fall due on
Sunday, are generally paid on Saturday. See, as to the origin of keeping
Sunday as a holiday, Neale's F. & F. Index, Lord's day; Story on Pr. Notes,
Sec. 220; Story on Bills, Sec. 233; 2 Hill's N. Y. Rep. 587; 2 Applet. R.
264.
SUPER ALTUM MARE. Upon the high sea. Vide High Seas.
SUPER VISUM CORPORE. Upon view of the body. When an inquest is held over a
body found dead, it must be super visum corpore. Vide Coroner; Inquest.
SUPERCARGO, mar. law. A person specially employed by the owner of a cargo to
take charge of the merchandise which has been shipped, to sell it to the
best advantage, and to purchase returning cargoes and to receive freight, as
he may be authorized.
2. Supercargoes have complete control over the cargo, and everything
which immediately concerns it, unless their authority is either expressly or
impliedly restrained. 12 East, R. 381. Under certain circumstances, they are
responsible for the cargo; 4 Mass. 115; see 1 Gill & John. 1; but the
supercargo has no power to interfere with the government of the ship. 3
Pardes. n. 646; 1 Boulay-Paty, Dr. Com. 421.
SUPERFOETATION, med. jur. The conception of a second embryo, during the
gestation of the first, or the conception of a child by a woman already
pregnant with another, during the time of such pregnancy.
2. This doctrine, though doubted, seems to be established by numerous
cases. Beck's Med. Jur. 193; Cassan on Superfoetation; New York Medical
Repository; 1 Briand, Med. Leg. prem. partie, c. 3, art. 4; 1 Fodere, Med.
Leg. Sec. 299; Buffon, Hist. Nat. de l'Homme, Puberte.
SUPERFICIARIUS, civ. law. He who has built upon the soil of another, which
he has hired for a number of years or forever, yielding a yearly rent. This
is not very different from the owner of a lot on ground rent in
Pennsylvania. Dig. 43, 18, 1 and 2.
SUPERFICIES. A Latin word used among civilians. It signifies in the edict of
the praetor whatever has been erected on the soil, quidquid solo
inoedificdtum est. Vide Dig. 43, tit. 18, 1. 1 and 2.
SUPERIOR. One who has a right to command; one who holds a superior rank; as,
a soldier is bound to obey his superior.
2. In estates, some are superior to others; an estate entitled to a
servitude or easement over another estate, is called the superior or
dominant, and the other the inferior or servient estate. 1 Bouv. Inst. n.
1612.
3. Of courts, some are supreme or superior, possessing in general
appellate jurisdiction, either by writ of error or by appeal; 3 Bouv. Inst.
n. 2527; the others are called inferior courts.
SUPERNUMERARII, Rom. civil law. From the reign of Constantine to Justinian,
advocates were divided into two classes: viz. advocates in title, who were
called statute, and supernumeraries. The statutis were inscribed in the
matriculation books, and formed a part of the college of advocates in each
jurisdiction. The supernumeraries were not attached to any bar in
particular, and could reside where, they pleased; they took the place of
advocates by title, as vacancies occurred in that body. Code Justin., de
adv. div. jud. c. 3, 11, 13; Calvini Lex, ad voc.; also Statuti.
SUPERSEDEAS, practice, actions. The name of a writ containing a command to
stay the proceedings at law.
2. It is granted on good cause shown that the party ought not to
proceed. F. N. B. 236. There are some writs which though they do not bear
this name have the effect to supersede the proceedings, namely, a writ of
error, when bail is entered, operates as a supersedeas, and a writ of
certiorari to remove the proceedings of an inferior into a superior court
has, in general, the same effect. 8 Mod. 373; 1 Barnes, 260; 6 Binn. R. 461.
But, under special circumstances, the certiorari has not the effect to stay
the proceedings, particularly where summary proceedings, as to obtain
possession under the landlord and tenant law, are given by statute. 6 Binn.
R. 460; 1 Yeates, R. 49; 4 Dall. R. 214; 1 Ashm. R. 230; Vide Vin. Ab. h.t.;
Bac. Ab. h.t.; Com. Dig. h.t.; Yelv. R. 6, note.
SUPERSTITIOUS USE, English law. When lands, tenements, rents, goods or
chattels are given, secured or appointed for and toward the maintenance of a
priest or chaplain to say mass; for the maintenance of a priest, or other
man, to pray for the soul of any dead man, in such a church or elsewhere; to
have and maintain perpetual obits, lamps, torches, &c., to be used at
certain times to help to save the souls of men out of purgatory; in such
cases the king by force of several statutes, is authorized to direct and
appoint all such uses to such purposes as are truly charitable. Bac. Ab.
Charitable Uses and Mortmain, D; Duke on Char. Uses, 105; 6 Ves. 567; 4 Co.
104.
2. In the United States, where all religious opinions are free, and the
right to exercise them is secured to the people, a bequest to support a
catholic priest, and perhaps certain other uses in England, would not in
this country be considered as superstitious uses. 1 Pa. R. 49; 8 Penn. St.
R. 327; 17 S. & R. 388; 1 Wash. 224. It is not easy to see how there can be
a superstitious use in this country, at least in the acceptation of the
British courts. 1 Watts, 224; 4 Bouv. Inst. n. 3985.
SUPERVISOR. An overseer; a surveyor.
2. There are officers who bear this name whose duty it is to take care
of the highways.
SUPPLEMENTAL. That which is added to a thing to complete it as a
supplemental affidavit, which is an additional affidavit to make out a case;
a supplemental bill. (q.v.)
SUPPLEMENTAL BILL, equity plead. A bill already filed to supply some defect
in the original bill. See Bill supplemental.
SUPPLICAVIT, Eng. law. The name of a writ issuing out of the king's bench or
chancery, for taking sureties of the peace; it is commonly directed to the
justices of the peace, when they are averse to acting in the affair in their
judicial capacity. 4 Bl. Com. 233; vide Vin. Ab. h, t.; Com. Dig. Chancery,
4 R.; Id. Forcible Entry, D 16, 17.
SUPPLICIUM, civil law. A corporal punishment ordained by law; the punishment
of death, so called because it was customary to accompany the guilty man to
the place of execution and there offer supplications for him.
SUPPLIES, Eng. Law. Extraordinary grants to the king by parliament, to
supply the exigencies of the state. Jacob's Law Dict. h.t.
SUPPORT. The right of support is an easement which one man, either by
contract or prescription, enjoys, to rest the joists or timbers of his house
upon the wall of an adjoining building, owned by another person. 3 Kent,
Com. 435. Vide Lois des Bat. part. 1, c. 3, s. a. 1, Sec. T; Party wall.
SUPPRESSIO VERI. Concealment of truth.
2. In general a suppression of the truth, when a party is bound to
disclose it, vitiates a contract. In the contract of insurance a knowledge
of the facts is required to enable the underwriter to calculate the chances
and form a due estimate of the risk; and, in this contract perhaps more than
any other, the parties are required to represent every thing with fairness.
1 Bla. Rep. 594; 3 Burr. 1809.
3. Suppressio veri as well as suggestio falsi is a ground to rescind an
agreement, or at least not to carry it into execution. 3 Atk. 383; Prec. Ch.
138; 1 Fonb. Eq. c. 2, s. 8; 1 Ball & Beatty, 241; 3 Munf. 232 1 Pet. 383; 2
Paige, 390 4 Bouv. Inst. n. 3841. Vide Concealment; Misrepresentation;
Representation: Suggestio falsi.
SUPRA PROTEST. Under protest. Vide Acceptance supra protest; dcceptor supra
protest; Bills of Exchange.
SUPREMACY. Sovereign dominion, authority, and preeminence; the highest
state. In the United States, the supremacy resides in the people, and is
exercises by their constitutional representatives, the president and
congress. Vide Sovereignty.
SUPREME. That which is superior to all other things; as the supreme power of
the state, which is an authority over all others. The supreme court, which
is superior to all other courts.
SUPREME COURT. The court of the highest jurisdiction in the United States,
having appellate jurisdiction over all the other courts of the United.
States, is so called. Its powers are examined under the article Courts of
the United States.
2. The following list of the judges who have had seats on the bench of
this court is given for the purpose of reference. Chief Justices. John Jay,
appointed September 26, 1789, resigned in 1795. John Rutledge, appointed
July 1, 1795, resigned in 1796. Oliver Ellsworth, appointed March 4, 1796,
resigned in 1801. John Marshall, appointed January 31, 1801, died July 6,
1835. Roger B. Taney, appointed March 15, 1836. Associate Justices. William
Cushing, appointed September 27, 1789, died in 1811. James Wilson, appointed
September 29, 1789, died in 1798. John Blair, appointed September 30, 1789,
died in 1796. James Iredell, appointed February 10, 1790, died in 1799.
Thomas Johnson, appointed November 7, 1791, resigned in 1793. William
Patterson, appointed March 4, 1793, in the place of Judge Johnson, died in
1806. Samuel Chase, appointed January 7, 1796, in the place of Judge Blair,
died in 1811. Bushrod Washington, appointed December 20,1798, in the place
of Judge Wilson, died November 26, 1829. Alfred Moore, appointed December
10, 1799 in the place of Judge Iredell, resigned in 1864. William Johnson,
appointed March 6, 1804, in the place of Judge Moore, died in 1835.
Brockholst Livingston, appointed November 10, 1806, in the place of Judge
Patterson, died in 1823. Thomas Todd, appointed March 3, 1807, under the act
of congress of February, 1807, providing for an additional justice, died in
1826. Gabriel Duval, appointed November 18, 1811, in the place of Judge
Chase, resigned in January, 1835. Joseph Story, appointed November 18, 1811,
in the place of Judge Cushing. Smith Thompson, appointed December 9, 1823,
in the place of, Judge Livingston, deceased. Robert Trimble, appointed May
9, 1826, in the place of Judge Todd, died in 1829. John McLean, appointed
March 1829, in the place of Judge Trimble, deceased. Henry Baldwin,
appointed January 1830, in the place of Judge Washington, deceased. James M.
Wayne, appointed January 9, 1835, in the place of Judge Johnson, deceased.
Philip P. Barbour, appointed March 15, 1836, died February 25,1841. John
Catron, appointed March 8, 1837, under the act of congress providing for two
additional judges. John McKinley, appointed September 25, 1837, under the
last mentioned act. Peter V. Daniel, appointed March 3, 1841, in the place
of Judge Barbour, deceased. Samuel Nelson, appointed February 14, 1845, in
the place of Judge Thompson, deceased. Levi Woodbury, appointed September
20, 1845, in the recess of senate, in the place of Judge Story, deceased:
his nomination confirmed January 3, 1846. Robert C. Grier, appointed August
4, 1846, in the place of Judge Baldwin, deceased. Benj. Robbins Curtis,
appointed 1851, in the recess of the senate, in the place of Judge Woodbury,
deceased: his nomination confirmed The present judges of the supreme court
are, Chief Justice. Roger B. Taney. Associate Justices. John McLean, James
M. Wayne, John Catron, John McKinley, Peter V. Daniel, Samuel Nelson, Robert
C. Grier, and B. Robbins Curtis.
3. In the several states there are also supreme courts; their powers
and jurisdiction will be found under the names of the several states.
SUR. A French word which signifies upon, on. It is very frequently used in
connexion with other words as, sur rule to take deposition, sur trover and
conversion, and the like.
SUR CUI ANTE DIVORTIUM. The name of a writ issued in favor of the heir of
the wife, where the husband alienated the wife's lands, during the
coverture, and afterwards they were divorced and she died, to recover the
lands from the alienee. Vide Cui ante divortium.
SURCHARGE, chancery practice. When a bill is filed to open an account,
stated, liberty is sometimes given to the plaintiff to surcharge and falsify
such account. That is, to examine not only errors of fact, but errors of
law. 2 Atk. 112; 11 Wheat. 237; 2 Ves. 565.
2. "These terms, `surcharge,' and `falsify,'" says Mr. Justice Story, 1
Eq. Jur. Sec. 525, "have a distinct sense in the vocabulary of courts of
equity, a little removed from that, which they bear in the ordinary language
of common life. In the language of common life, we understand `surcharge' to
import an overcharge in quantity, or price, or degree, beyond what is just
and reasonable. In this sense, it is nearly equivalent to `falsify;' for
every item, which is not truly charged, as it should be, is false; and by
establishing such overcharge it is falsified. But, in the sense of courts of
equity, these words are used in contradistinction to each other. A surcharge
is appropriately applied to the balance of the whole account; and supposes
credits to be omitted, which ought to be allowed. A falsification applies to
some item in the debets; and supposes, that the item is wholly false, or in
some part erroneous. This distinction is taken notice of by Lord Hardwicke;
and the words used by him are so clear, that they supersede all necessity
for farther commentary. `Upon a liberty to the plaintiff to surcharge, and
falsify,' says he, `the onus probandi is always on the party having that
liberty; for the court takes it as a stated account, and establishes it.
But, if any of the parties can show an omission, for which credit ought to
be, that is, a surcharge, or if anything is inserted, that is a wrong
charge, he is at liberty to show it, and that is a falsification. But that
must be by proof on his side. And that makes a great difference between the
general cases of an open account, and were only [leave] to surcharge and
falsify; for such must be made out."
SURETY, contracts. A person who binds himself for the payment of a sum of
money or for the performance of something else, for another, who is already
bound for the same. A surety differs from a guarantor, and the latter cannot
be sued until after a suit against the principal. 10 Watts, 258.
2. The surety differs from bail in this, that the latter actually has,
or is by law presumed to have, the custody of his principal, while the
former has no control over him. The bail may surrender his principal in
discharge of his obligation; the surety cannot be discharged by such
surrender.
3. In Pennsylvania it has been decided that the creditor is bound to
sue the principal when requested by the surety, and the debt is due; and
that when proper notice is given by the surety that unless the principal be
sued, be will consider himself discharged, he will be so considered, unless
the principal be sued. 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30; S. P.
in Alabama, 9 Porter, R. 409. But in general a creditor may resort to the
surety for the payment of his debt in the first place, without applying to
the principal. 1 Watts, 28O; 7 Ham. part 1, 223. Vide Bouv. Inst. Index,
h.t.; Contribution; Contracts; Suretyship.
SURETY OF THE PEACE, crim. law. A security entered into before. Some
competent court or officer, by a party accused, together with some other
person, in the form of recognizance to the commonwealth in a certain sum of
money, with, a condition that the accused shall keep the peace towards all
the citizens of the commonwealth. A security for good behaviour is a similar
recognizance with a condition that the accused shall be of good behaviour.
2. This security may be demanded by a court or officer having
jurisdiction from all persons who threatened to kill or to, injure others,
or who by their acts give reason to believe they will commit a breach of the
peace. And even after an acquittal a prisoner may be required to give
security of the peace or good behaviour, when the circumstances of the case
justify a court in believing the public good requires it. 2 Yeates, R. 437
Bac. Ab. h.t.; 1 Binn. R. 98, note; Com. Dig. h.t.; Yin. Ab. h.t.; Bl. Com.
B. 4, c. 18, p. 251.
3. To obtain surety to keep the peace, the party requiring it must
swear or affirm be fears a present or future danger, and not merely swear or
affirm to a breach of the peace which is past; it is usual, however, to
state such injuries, and when the circumstances warrant it, a threat of
their repetition, as a legitimate ground for fearing future injury, which
fear must always be stated. 1 Chit. Pr. 677.
4. A recognizance to keep the peace is forfeited only by an actual
attack or threat of bodily harm, or burning a house, and the like, but not
by bare words Of h an choler. Hawk. h. 1, c. 60, s. 2. Vide Good Behaviour.
SURETYSHIP, contracts. An accessory agreement by which a person binds
himself for another already bound, either in whole or in part, as for his
debt, default or miscarriage.
2. The person undertaken for must be liable as well as the person
giving the promise, for otherwise the promise would be a principal and not a
collateral agreement, and the prommissor would be liable in the first
instance; for example, a married woman would. Not be liable upon her
contract, and the person who should become surety for her that she would
perform it would be responsible as a principal and not as a surety. Pitm. on
P. & S. 13; Burge on Sur. 6; Poth. Ob. n. 306. If a Person undertakes as a
surety when he knows the obligation, of the principal is void, he becomes a
principal: 2 Id. Raym. 1066; 1 Burr. 373.
3. As the contract of suretyship must relate to the same subject as the
principal obligation, it follows that it must not be of greater extent or
more onerous' either in its amount, or in the time or manner, or place of
performance, than such principal obligation; and if it so exceed, ii will be
void, as to such excess. But the obligation of the surety may be less
onerous, both in its amount, and in the time, place and manner of its
performance, that of the principal debtor; it may be for a less amount, or
the time may be more protracted. Burge, on Sur. 4, 5.
4. The contract of suretyship may be entered into by all persons who
are sui juris, and capable of entering into other contracts. See Parties to
contracts.
5. It must be made upon a sufficient consideration. See Consideration.
6. The contract of suretyship or guaranty, requires a present agreement
between the contracting parties; and care must be taken to observe the
distinction between an actual guaranty, and an offer to guaranty at a future
time; when an offer is made, it must be accepted before it becomes binding.
1 M. & S. 557; 2 Stark. 371; Cr. M. & Ros. 692.
7. Where the statute of frauds, 29 Car. II., c. 3, is in force, or its
principles have been adopted, the contract of suretyship "to answer for the
debt, default or miscarriage of another person," must be in writing, &c.
8. The contract of suretyship is discharged and becomes extinct, 1st.
Either by the terms of the contract itself. 2d. By the acts to which both
the creditor and principal alone are parties. 3d. By the acts of the
creditor and sureties. 4th. By fraud. 5th. By operation of law.
9.-Sec. 1. When by his contract the surety limits the period of time
for which he is willing to be responsible, it is clear he cannot be held
liable for a longer period; as when he engages that an officer who is
elected annually shall faithfully perform his duty during his continuance in
office; his obligation does not extend for the performance of his duty by
the same officer who may be elected for a second year. Burge on Sur. 63,
113; 1 McCord, 41; 2 Campb. 39; 3 Ad. & Ell. N. S. 276; 2 Saund. 411 a; 6
East, 512; 2 M. & S. 370; New R. (5 B. & P.) 180; 2 M. & S. 363; 9 Moore,
102.
10.-Sec. 2. The contract of suretyship becomes extinct or discharged by
the acts of the principal and of the creditor without any act of the surety.
This may be done, 1. By payment, by the principal. 2. By release of the
principal. 3. By tender made by principal to the creditor. 4. By compromise.
5. By accord and satisfaction. 6. By novation. 7. By delegation. 8. By set-
off. 9. By alteration of the contract.
11.-1. When the principal makes payment, the sureties are immediately
discharged, because the obligation no longer exists. But as payment is the
act of two parties, the party tendering the debt and the party receiving it,
the money or thing due must be accepted. 7 Pick 88; 4 Pick. 83; 8 Pick. 122.
See Payment.
12.-2. As the release of the principal discharges the obligation, the
surety is also discharged by it.
13.-3. A lawful tender made by the principal or his authorized agent,
to the creditor or his authorized agent, will discharge the surety. See. 2
Blackf. 87; 1 Rawle, 408; 2 Fairf. 475; 13 Pet. 136.
14.-4. When the creditor and principal make a compromise by which the
principal is discharged, the surety is also discharged. 11 Ves. 420; 3 Bro.
C. C. 1; Addis. on Contr. 443.
15.-5. Accord and satisfaction between the principal and the creditor
will discharge the surety, as by that the whole obligation becomes extinct.
See Accord and satisfaction.
16.-6. It is evident that a simple novation, or the making a new
contract and annulling the old, must, by the destruction of the obligation,
discharge the surety.
17.-7. An absolute delegation, where the principal procures another
person to assume the payment upon condition that he shall be discharged,
will have the effect to discharge the surety. See Delegation.
18.-8. When the principal has a just set-off to the whole claim of the
creditor, the surety is discharged.
19.-9. If the principal and creditor change the nature of the contract,
so that it is no longer the same, the surety will be discharged; and even
extending the time of payment, without the consent of the surety, when the
agreement to give time is founded upon a valuable consideration, is such an
alteration of the contract as discharges the surety. See Giving Time.
20.-Sec. 3. The contract is discharged by the acts of the creditor and
surety, 1. By payment made by the surety. 2. By release of the surety by the
creditor. 3. By compromise between them. 4. By accord and satisfaction. 5.
By set off.
21.-Sec. 4. Fraud by the creditor in relation to the obligation of the
surety, or by the debtor with the knowledge or assent of the creditor, will
discharge the liability of the surety. 3 B. & C. 605; S. C. 6 Dowl. & Ry.
505; 6 Bing. N. C. 142.
22.-Sec. 5. The contract of suretyship is discharged by operation of
law, 1. By confusion. 2. prescription, or the act of limitations. 3. By
bankruptcy.
23.-1. The contract of suretyship is discharged by confusion or merger
of rights; as, where the obligee marries the obligor. Burge on Sur. 256; 2
Ves. p. 264; 1 Salk. 306; Cro. Car. 551.
24.-2. The act of limitations or prescription is a perfect bar to a
recovery against a surety, after a sufficient lapse of time, when the
creditor was sui juris and of a capacity to sue.
25.-3. The discharge of the surety under the bankrupt laws, will put an
end to his liability, unless otherwise provided for in the law.
26. The surety has the right to pay and discharge the obligation the
moment the principal is in default, and have immediate recourse to his
principal. He need not wait for the commencement of an action, or the issue
of legal process, but he cannot accelerate the liability of the principal,
and if he pays money voluntarily before the time of payment arrives, he will
have no cause of action until such time, or if he pays after the principal
obligation has been discharged, when he was under no obligation to pay, he
has no ground of action,.
27. Co-sureties are in general bound in solido to pay the debt, when
the principal fails, and if one be compelled to pay the whole, he may demand
contribution from the rest, and recover from them their several proportions
of their common liability in an action for money paid by him to their use. 6
Ves. 807; 12 M. & W. 421 8 M. & W. 589; 4 Scott, N. S. 429. See, generally,
15 East, R. 617; Yelv. 47 n.; 20 Vin. Ab. 101; 1 Supp. to Ves. jr. 220, 498,
9; Ayliffe's Pand. 559; Poth. Obl. part 2, c. 6; 1 Bell's Com. 350, 5th ed.;
Giting time; Principal; Surety.
SURGERY, med. jur. That part of the healing art which relates to external
diseases; their treatment; and, specially, to the manual operations adopted
for their cure.
2. Every lawyer should have some acquaintance with surgery; his
knowledge on this subject will be found useful in cases of homicide and
wounds.
SURNAME. A name which is added to the christian name, and which, in modern
times, have become family names.
2. They are called surnames, because originally they were written over
the name in judicial writings and contracts. They were and are still used
for the purpose of distinguishing persons of the same name. They were taken
from something attached to the persons assuming them, as John Carpenter,
Joseph Black, Samuel Little, &c. See Name.
SURPLUS. That which is left from a fund which has been appropriated for a
particular purpose; the remainder of a thing; the overplus the residue.
(q.v.) See 18 Ves. 466.
2. The following is an example of a surplus; if a thing be put in
pledge as a security to pay one hundred dollars, and it be afterwards sold
for one hundred and fifty dollars, the fifty dollars will be the surplus.
Wolff, Inst. Sec. 697. See Overplus; Residue.
SURPLUSAGE, pleading. A superfluous and useless statement of matter wholly
foreign and impertinent to the cause.
2. In general surplusagium non nocet, according to the maxim utile per
inutile non vitiatur; therefore if a man in his declaration, plea, &c., make
mention of a thing which need, not be stated, but the matter set forth is
grammatically right, and perfectly sensible, no advantage can be taken on
demurrer. Com. Dig. Pleader, C 28, E 2; 1 Salk. 325; 4 East, 400; Gilb. C.
P. 131; Bac. Ab. Pleas, 1, 4; Co. Litt. 303, b; 2 Saund. 306, n. 14; 5 East
444; 1 Chit. Pl. 282; Lawes on Pl. 63; 7 John. 462; 3 Day, 472; 2 Mass. R.
283; 13 John. 80.
3. When, by an unnecessary allegation the plaintiff shows he has no
cause of action, the defendant may demur. Com. Dig. Pleader, c. 29; Bac. Ab.
Pleas, 1, 4; see 2 East, 451; 4 East, 400; Dougl. 667; 2 Bl. Rep. 842; 3
Cranch, 193; 2 Dall. 300; 1 Wash. R. 257.
4. When the surplusage is not grammatically set right, or it is
unintelligible and, no sense at all can be given it, or it be contradictory
or repugnant to what is before alleged, the adversary may take advantage of
it on special demurrer. Gilb. C. P. 132; Lewes on Pl. 64.
5. When a party alleges a material matter with an unnecessary detail of
circumstances, and the essential and non-essential parts of a statement are,
in their nature, so connected as to be incapable of separation, the opposite
party may include under his traverse the whole matter alleged. And as it is
an established rule that the evidence must correspond with the allegations,
it follows that the party who has thus pleaded such unnecessarily matter
will be required to prove it, and thus he is required to sustain an
increased burden of proof, and incurs greater danger of failure at the
trial. For example, if in justifying the taking of cattle damage feasant, in
which case it is sufficient to allege that they were doing damage to his
freehold, he should state a seisin in fee, which is traversed, be must prove
a seisin in fee. Dyer, 365; 2 Saund. 206, a, note 22 Steph. on Pl. 261, 262;
1 Smith's Lead. Cas. 328, note; 1 Greenl. Ev. Sec. 51 1 Chit. Pl. 524, 525;
U. S. Dig. Pleading, VII. c.
SURPLUSAGE, accounts. A greater disbursement than the charges of the
accountant amount to.
SURPRISE. This term is frequently used in courts of equity and by writers on
equity jurisprudence. It signifies the act by which a party who is entering
into a contract is taken unawares, by which sudden confusion or perplexity
is created, which renders it proper that a court of equity should relieve
the party so surprised. 2 Bro. Ch. R. 150; 1 Story, Eq. Jur. Sec. 120, note.
Mr. Jeremy, Eq. Jur. 366, seems to think that the word surprise is a
technical expression, and nearly synonymous. with fraud. Page 383, note. It
is sometimes, used in this sense when it is deemed presumptive of, or
approaching to fraud. 1 Fonb. Eq. 123 3 Chan. Cas. 56, 74, 103, 114. Vide 6
Ves. R. 327, 338; 2 Bro. Ch. R. 826; 16 Ves. R. 81, 86, 87; 1 Cox, R. 340; 2
Harr. Dig. 92.
2. In practice, by surprise is understood that situation in which a
party is placed, without any default of his own, which will be, injurious to
his interest. 8 N. AS. 407. The courts always do everything in their power
to relieve a party from the effects of a surprise, when he has been diligent
in endeavouring to avoid it. 1 Clarke's R. 162; 3 Bouv. Inst. n. 3285.
SURREBUTTER, pleading. The plaintiff's answer to the defendant's rebutter is
governed by the same rules as the replication. (q.v.) Vide 6 Com. Dig. 185;
7 Com. Dig. 389
SUBREJOINDER, pleading. The plaintiff's answer to the defendant's rejoinder.
It is governed in every respect by the same rules as the replication. (q.v.)
Steph. Pl. 77; Arch., Civ. Pl. 284; 7 Com. Dig. 389.
SURRENDER, estates, conveyancing. A yielding up of an estate for life or
years to him who has an immediate estate in reversion or remainder, by which
the lesser estate is merged in the greater by mutual agreement, Co. Litt.
337, b.
2. A surrender is of a nature directly opposite to a release; for, as
the latter operates by the greater estate descending upon the less, the
former is the falling of a less estate into a greater, by deed. A surrender
immediately divests the estate of the surrenderer, and vests it in the
surrenderee, even without the assent (q.v.) of the latter. Touchs. 300, 301.
3. The technical and proper words of this conveyance are, surrender and
yield up; but any form of words; by which the intention. of the parties is
sufficiently manifested, will operate as a surrender, Perk. Sec. 607; 1 Term
Rep. 441; Com. Dig. Surrender, A.
4. The surrender may be express or implied. The latter is when an
estate, incompatible with the existing estate, is accepted or the lessee
takes a new lease of the same lands. 16 Johns. Rep. 28; 2 Wils. 26; 1 Barn.
& A. 50; 2 Barn. & A. 119; 5 Taunt. 518, and see 6 East, R. 86; 9 Barn. &
Cr. 288 7 Watts, R. 128. Vide, generally, Cruise, Dig. tit. 32, c. 7; Com.
Dig. h.t.; Vin. Ab. h.t.; 4 Kent, Com. 102; Nels. Ab. h.t.; Rolle's Ab. h.t.
11 East, R. 317, n.
5. The deed or instrument by which a surrender is made, is also called
a surrender. For the law of presumption of surrenders, see Math. on Pres.
ch. 13, p. 236; Addis. on Contr. 658-661.
SURRENDER OF CRIMINALS. The act by which the public authorities deliver a
person accused of a crime, and who is found in their, jurisdiction, to the
authorities within whose jurisdiction it is alleged the crime has been
committed. Vide Extradition; Fugitives from justice.
SURRENDEREE. One to whom a surrender has been made.
SURRENDEROR. One who makes a surrender; as when the tenant gives up the
estate and cancels his lease before the expiration of the term; one who
yields up a freehold estate for the purpose of conveying it.
SURREPTITIOUS. That which is done in a fraudulent stealthy manner.
SURROGATE. In some of the states, as in New Jersey, this is the name of an
officer who has jurisdiction in granting letters testamentary and letters of
administration.
2. In some states, as in Pennsylvania, this officer is called register
of wills and for granting letters, of administration in others, as in
Massachusetts, he is called judge of probates.
SURVEY, The act by which the quantity of a piece of land is ascertained; the
paper containing a statement of the courses, distances, and quantity of
land, is also called a survey.
2. A survey made by authority of law and duly returned into the land
office, is a matter of record, and of equal dignity with the patent. 3
Marsh. 226; 2 J. J. Marsh, 160. See 3 Greenleaf, 126; 5 Greenleaf, 24; 14
Mass. 149 1 Harr. & John. 20 1 1 Overt. 199; 1 Dev. & Bat. 76.
3. By survey is also understood an examination; as, a survey has been
made of your house, and now the insurance company will insure it.
SURVIVOR. The longest liver of two or more persons.
2. In crises of partnership, the surviving partner is entitled to have
all the effects of the partnership, and, is bound to pay all the debts owing
by the firm. Gow on Partn. 157; Watson on Partn. 364. He is, however, bound
to account for the surplus to the representatives of his deceased partners,
agreeably to their respective rights.
3. A surviving trustee is generally vested with all the powers of all
the trustees, and the surviving administrator is authorized to act for the
estate as if he had been sole administrator. As to the presumption of
survivorship, when two or more persons have perished by the same event, see
Civ. Code of Lo. art. 930 to 933 and vide Death; Cro. Eliz. 503; 1 Bl. Rep.
610 2 Phillim. Rep. 261; S. C. 1 Eccl. Reports, 250; Fearne on Rem. iv.;
Poth. on Obli. by Evans, vol. 2, p. 346; 8 Ves. 10; 14 Ves. 578 17 Ves. 482;
6 Taunt. 213; Cowp. 257; 5 Ves. 485. Vide, generally, 2 Fonb. Eq. 102; 8
Vin. Ab. 323; 20 Vin. Ab. 146; 8 Com. Dig. 475, 594; 1 Suppl. to Ves. jun.
115, 186, 407, 8, 2 Suppl. to Ves. jun. 47, 296, 340, 391,477; 1 Fodere,
Med. Leg. Sec. 424-483.
4. The right of survivorship among joint-tenants has been abolished,
except as to estates held in trust, in Pennsylvania, New York, Kentucky,
Virginia, Indiana, Missouri, Tennessee, Alabama, Georgia, North and South
Carolina. Vide Estates in Joint-tenancy. In Connecticut it never existed. 1
Swift's Dig. 102 see 1 Hill. Ab. 440. As to survivorship among legatees, see
1 Turn. & R. 413; 1 Br. C. C. 574; 3 Russ. 217. See Death; Estates in Joint-
tenancy; Joint-tenants; Partnership.
SUS' PER COLL', Eng. law. In the English practice, a calendar is made out of
attainted criminals, and the judge signs the calendar with their separate
judgments in the margin. In the case of a capital felony, it is written
opposite the prisoner's name, "let him be hanged by the neck," which, when
the proceedings were in Latin, was, "suspendatur per collum," or, in the
abbreviated form, "sus' per coll'." 4 Bl. Comm. 403.
SUSPENDER, Scotch law. He in whose favor a suspension is made.
2. In general a suspender is required to give caution to pay the debt
in the event it shall be found due. Where the suspender cannot, from his low
or suspected circumstances, procure unquestionable security, the lords admit
juratory caution; but the reasons of suspension are in that case, to be
considered with particular accuracy at passing the bill. Act. S. 8 Nov.
1682; Ersk. Prin. L. Scot. 4, 3, 6.
SUSPENSE. When a rent, profit a prendre, and the like, are, in consequence
of the unity of possession of the rent, &c., of the land out of which they
issue, not in esse for a time, they are said to be in suspense, tunc
dormiunt, but they may be revived or awakened. Co, Litt. 313 a.
SUSPENSION. A temporary stop of a right, of a law, and the like.
2. In times of war the habeas corpus act maybe suspended by lawful
authority.
3. There may be a suspension of an officer's duties or powers, when he
is charged with crimes. Wood's Inst. 510.
4. Suspension of a right in an estate is a partial extinguishment, or
an extinguishment for a time. It differs from an extinguishment in this. A
suspended right may be revived; one extinguished is absolutely dead. Bac.
Ab. Extinguishment, A.
5. The suspension of a statute for a limited time operates so as to
prevent its operation for the time, but it hits not the effect of a repeal.
3 Dall. 365.
SUSPENSION, Scotch law. That form of law by which the effect of a sentence-
condemnatory, that has not yet received execution, is stayed or postponed,
till the cause be again considered. Ersk. Prin. L. Scotl. 4, 3, 5.
Suspension is competent also, even where there is no decree, for putting a
stop to any illegal act whatsoever. Id. 4, 3, 7.
2. Letters of suspension bear the form of a summons, which contains a
warrant to cite the charger, Ib.
SUSPENSION, eccl. law. An ecclesiastical censure, by which a spiritual
person is either interdicted tho exercise of his ecclesiastical function, or
hindered from receiving the profits of his benefice. It may be partial or
total; for a limited time, or forever, when it is called deprivation or
amotion. Ayl. Parerg. 501.
SUSPENSION OF ARMS. An agreement between belligerents, made for a short time
or for a particular place, to cease hostilities between them. See Armistice.
Truce.
SUSPENSION OF A RIGHT. The act by which a party is deprived of the exercise
of his right, for a time.
2. When a right is suspended by operation of law, the right is revived
the moment the bar is removed; but when the right is suspended by the act of
the party, it is gone forever. See 1 Roll. Ab. tit. Extinguishment, L, M.
SUBPENSIVE CONDITION. One which prevents a contract from going into
operation until it has been fulfilled; as if I promise to pay you one
thousand dollars on condition that the ship Thomas Jefferson shall arrive
from Havre, the contract is suspended until the arrival of the ship. 1 Bouv.
Inst. n. 731.
SUSPICION. A belief to the disadvantage of another, accompanied by a doubt.
2. Without proof, suspicion, of itself, is evidence of nothing. When a
crime has been committed, an arrest may be made when, 1st. There are such
circumstances as induce a strong presumption of guilt; as being found in
possession of goods recently stolen, without giving a probable account of
having obtained the possession honestly. 2d. The absconding of the party
accused. 3d. Being found in company of known offenders. 4th. Living an idle
disorderly life, without any apparent means of support. In such cases the
arrest must be made as in other cases. Vide 20 Vin. Ab. 150; 4 Bl. Com. 290.
SUTLER. A man whose employment is to sell provisions and liquor to a camp.
2. By the articles of war, art. 29, no sutler is permitted to sell any
kind of liquor or victuals, or to keep his house or shop open for the
entertainment of soldiers, after nine at night, or before the beating of the
reveillee, or upon Sundays during divine service or sermon, on penalty of
being dismissed all future sutling. And by art. 60, all sutlers are to be
subject to orders according to the rules and discipline of war.
SWAINMOTE COURT, Eng. law. The court within the forest to which all the
freeholders owe suit and service. Bac. Ab. Courts of the Forest, 2.
TO SWEAR. To take an oath, judicially administered. Vide Affirmation; Oath.
2. To swear also signifies to use such profane language as is forbidden
by law. This is generally punished by statutory provisions in the several
states.
SWINDLER, criminal law. A cheat; one guilty of defrauding divers persons. 1
Term Rep. 748; 2 H. Blackst. 531; Stark. on Sland. 135.
2. Swindling is usually applied to a transaction, where the guilty
party procures the delivery to him, under a pretended contract, of the
personal property of another, with the felonious design of appropriating it
to his own use. 2 Russell on Crimes, 130; Alison, Prine. Cr. Law of
Scotland, 250; Mass. 406.
SYMBOL. A sign; a token; a representation of one thing by another.
2. A symbolical delivery is equivalent, in many cases, in its legal
effects, to actual delivery; as, for example, the delivery of the keys of a
warehouse in which goods are deposited, is a delivery sufficient to transfer
the property. 1 Atk. 171; 5 John. 335; 2 T. R. 462; 7 T. R. 71; 2 Campb.
243; 1 East, R. 194; 3 Caines, 182; 1 Esp. 598; 3 B. & C. 423.
SYNALLAGMATIC CONTRACT, civil law. A synallagmatic or bilateral contract is
one by which each of the contracting parties binds himself to the other;
such are the contracts of sale, hiring, &c. Poth. Ob. n. 9. Vide Contract.
SYNDIC. A term used in the French law, which answers in one sense to our
word assignee, when applied to the management of bankrupts' estates; it has
also a more extensive meaning; in companies and communities, syndics are
they who are chosen to conduct the affairs and attend to the concerns of the
body corporate or community; and in that sense the word corresponds to
director or manager. Rodman's Notes to Code. de Com. p. 351; Civ. Code of
Louis. art. 429; Dict. de Jurisp. art. Syndic.
SYNGRAPH. A deed, bond, or other instrument of writing, under the band and
seal of all the parties. It was so called because the parties wrote
together.
2. Formerly such writings were attested by the subscription and crosses
of the witnesses; afterwards, to prevent frauds and concealments, they made
deeds of mutual covenant in a script and rescript, or in a part and
counterpart, and in the middle between the two copies they wrote the word
syngraphus in large letters, which being cut through the parchment, and one
being delivered to each party, on being afterwards put together, proved
their authenticity.
3. Deeds thus made were denominates syngraphs by the canonists, and by
the common lawyers chirographs. (q.v.) 2 Blackstone's Commentaries, 296.
SYNOD. An ecclesiastical assembly.